A DUI can be easy to get, even when the breath test only shows some prescription medication.
Let’s take the hypothetical case of Patty, which is very similar to one that the Utah Court of Appeals just ruled on.
Here are the essential “facts” of the case:
- A cop noticed Patty was driving slowly, and felt she was “creating a traffic hazard for vehicles that had to drive around it.”
- Betty had her hazard lights on. The cop tried to pull her over, but for a while, Betty continued to drive, and she even failed to pull over after the cop put on his lights and siren.
- She avoided eye contact with the officer when he approached her, so he thought she may be guilty of a DUI.
- The cop “had nearly ten years of experience with the Utah Highway Patrol and had completed his standardized field sobriety instructor certification as well as his drug recognition expert (DRE) certification, although his DRE certification was no longer current. Based on his training and experience, he understood that “it is common with people that are under the influence of … alcohol or drugs [to be] so focused on staying in their lane or what’s right ahead of them, that they really don’t know what’s going on around them.”
- At one point, he moved his car in front of hers, and beckoned her to pull over.
- Betty moved over one lane but did not stop driving, which perplexed the cop.
- The cop again tried to get Betty’s attention.
- She finally stopped, so he knocked on her window.
- The cop had his gun drawn, having no idea if the driver was dangerous, and he handcuffed her.
- Betty said she had not seen the cop, and that she did not think she needed to stop.
- Betty seemed dazed and had droopy eyes. Betty said she had taken some medication including Tramadol, a central nervous system depressant with effects similar to alcohol.
- Based on this, and also based on Betty’s “intent focus straight ahead, which the cop said is common with people that are under the influence,” the officer was concerned about her ability to drive and consequently began a DUI investigation.
- The cop then gave Betty three tests: 1) the horizontal gaze nystagmus test – also called the “pen test,” 2) the nine-step walk-and-turn, 3) and the one-leg stand.
- Based on all the “clues” he got from this test, the cop felt Betty was under the influence of alcohol.
- To complicate things, Betty said she had had brain surgery, so the cop checked her eyes for abnormalities, but didn’t find any. “Her pupils were the same size, they were tracking equally, and there was no resting eye nystagmus.” Betty denied having any other injury that could impair her ability to perform the tests, such as back, knee, or ankle problems.
- The cop noticed “there was a lack of smooth pursuit” in both of Betty’s eyes, which for the cop were “two clues,” and found two more clues during this test, for a total of four clues from the eye test.
- Thus, the cop felt those four clues showed she was under the influence.
- Betty then took the “nine-step walk-and-turn test.”
- The cop said that test gave him six more clues (“failing to maintain balance during the instruction phase of the test, missing heel to toe several times, stepping off the line several times, taking the wrong number of steps the first time, taking the wrong number of steps the second time, and performing an improper turn”).
- Betty then did “the one-leg stand.” The cop got two more clues from that (Betty put her foot down twice and seems to sway back and forth during the test).
- Betty spoke Spanish, but never said she did not understand the cop, and the cop didn’t feel there was any significant language barrier.
Now, here is the kicker.
- The cop gave Betty a breath test, which showed that she had not drunk any alcohol. But, because of his training and experience, he still thought she was impaired by something. A later test showed there was Tramadol in her body.
- Because Betty was very slow in pulling over, the cops charged her with a felony: failure to respond to an officer’s signal to stop, see Utah Code Ann. § 41-6a-210 (LexisNexis 2014), and a DUI, a class B misdemeanor, see id. § 41-6a-502.
- At trial, Betty argued that she was absolutely able “to safely operate [her] motor vehicle.”
- Betty was convicted, and appealed.
- She claimed there was simply not enough evidence to support the guilty findings.
- Betty argued that “the State’s only allegation was that “she was moving slowly with hazard lights on….” And [that] this by itself is not enough.”
- But, the judge stated, “I think there is sufficient evidence that the jury could look at it and determine that … the facts support a finding of guilt” because “[h]er eyes were drooping” and there were “the clues that [the officer] talked about.”
Now, this is important: on appeal Betty was able to show that because she squawked about what she deemed to be a lack of evidence after the prosecutor had “rested their case,” the Court of Appeals was willing to hear her arguments.
NOTE: If your lawyer does not OBJECT to what happens, the wrongdoing gets waived, and you typically CANNOT bring it up for the first time on appeal. In other words, you MUST give the trial judge the chance to correct any error. If you don’t, the Court of Appeals may say, “So sad, too bad.” In Utah, For an issue to be preserved, it “must be specifically raised, in a timely manner, and must be supported by evidence and relevant legal authority.” State v. Oliver, 2018 UT App 101, ¶ 13, 427 P.3d 495
But, the Court upheld the convictions.