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.
¶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.”
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.
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:
- The bill will prevent a second time offense from being plead down to an impaired driving.
- Get a screening and assessment for a Felony DUI and appropriate treatment.
- It extends the ignition interlock device requirement to 10 years.
- 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.
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.
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.
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.
If you get a DUI from another state, and have a Utah Drivers License, Utah will suspend your license as if the DUI conviction occurred in Utah. Many states have similar laws. My friend, Evan Levow, from New Jersery, compiled a database from most states. While his information looks correct, it is always best to contact a DUI attorney in your state to verify the information. Laws change all of the time and there are always exceptions to the rules. The link to database is State by State DUI Penalties.
Thank you Evan to your hard work.
The Constitution should apply to all equally. A person accused of murder has the exact same rights as someone accused of writing a bad check. This is the way it is supposed to work, but in the real world, it doesn’t. In fact, the Utah Courts and the Utah legislature have continuously found ways to limit the rights of the citizens accused of DUI in Utah. Here is the reality:
- If you are arrested for DUI, the officer will immediately seize your license. No judge, no jury, and you are presumed guilty before anyone hears the facts of your case.
- You can contest your Drivers License Suspension, and if you win the administrative hearing, you can still lose it in the Criminal Proceedings. Double jeopardy does not apply.
- The officer will not read you Miranda warnings until after he has done his investigation, and he may never read them even after you are arrested.
- You do not have a right to an attorney before you give evidence against yourself. In fact, in Utah, you have no right to an attorney when you are deciding to take a chemical test.
- Normally, if you remain silent, the jury cannot hear evidence of you exercising your right to remain silent. However, if you refuse a chemical test, there is a Utah statute that specifically allows the evidence of you refusing to be presented to the jury.
- Officers are required to have a reasonable suspicion that you have committed a crime in order to pull you over. However, in a DUI check point, officers can pull you over for no reason and check to see if you have been drinking.
- Normally, if the government destroys evidence, the evidence cannot be used against. In a Utah DUI situation, you have no right to retest the chemical evidence against you.
- In Utah, you can be convicted of a DUI even though when you were driving you were below a .08 brac/bac, but yet when you were tested you were above a .08.
The reality is there are DUI exceptions to the constitution. There is no other crime in Utah with so many exceptions to the out citizens constitutional rights.
As the New Year approaches for 2014, troopers, sheriffs, unified police, and local city police will be saturating the state in an effort to arrest people for DUI. There is always a big concentration in Salt Lake City. As an attorney, these saturation patrols concern me. Corners get cut by the police and innocent people get caught in their net and accused of DUI. Just this past month, in the name of DUI saturation patrols, I have defended two people that were totally innocent. One citizen told the officer, I do not drink, I have not taken any medications for two months, and I don’t do illegal drugs. The officer claims he saw many signs of impairment. The man’s blood was drawn, and the results came back showing nothing in his system.
These patrols, such as the one planned this week in Salt Lake City, have purpose and strategy. The purpose is to arrest as many people for DUI as possible and then boast to the media what a good job they did in getting drunk people off the road. As an attorney and practicing in Salt Lake City (and everywhere in the state), I see this every year. The strategy is to find any minor reason to pull citizens over and then test them for DUI. The pull over reasons I have seen in Salt Lake City and other cities are: failure to signal, license plate light out, cross a lane line, make a wide turn, no insurance found on cop’s computer, failing to stop at the sidewalk area before entering the street and a litany of other minor infractions. It is not hard for an officer to find a reason to pull you over, especially when you pull out of a drinking establishment.
Be cautious. Even though it is not against the law to drink and drive, don’t drive if you have had anything to drink. If the officer smells alcohol, the game will be over and you will most likely bet arrested.
The Second Edition of Utah DUI Defense: The Law and Practice has just come out. The first edition was released in 2011. The second edition has been updated with the latest case law, statutes, and strategies in defending DUI’s in Utah. The book took several hours of research, editing, and re-writing certain portions. It has been an exercise of being on top of this specialized area of practice. One thing I have learned from writing these books is that DUI is not as simple as people would like to thing. Second, it is an ever changing area of law. Statutes consistently change every time the legislature get together. The appellate courts make rulings that change DUI laws. The Drivers License Division change their policies. The purpose of the second edition of Utah DUI Defense: The Law and the Practice is to keep the practitioner up to date on these changes, to assist lawyers in Defending these cases, and to educate the public about the complexity of the law. The includes an invaluable CD that contains forms, manuals, videos, and examples of things attorneys will need in defending clients accused of DUI. The book has extensive chapters concerning alcohol DUIs, drug DUIs, metabolite DUIs, and minors and DUIs. The book discusses breath testing, urine testing, blood testing, and field sobriety testing. This book was a labor of love for my fellow practitioner defending people accused of DUI in Utah.