Appealing a Utah DUI from the Justice Court

In this recent article, a form  UHP  Trooper  appeals his  conviction from a Justice Court.  This is actually very common.  Utah has a unique system.  Class B Misdemeanors and lessor offenses can be heard in a Justice Court (municipal court, or city court).  These courts have no video or record made while hearings go on.  There are soon changes to be made to these courts because some feel there is at least the appearance that these courts serve only the purpose of collecting money.

If you don’t like what you get in this court not of record, you can appeal to the District Court.  You get a whole new start…well sort of.  Check this out.  You go to Court, everything is against you and you lose.  You don’t get a fair trial.  So the judge sentences you to jail.  You tell the judge that you want to appeal to the District Court.  The judge gets miffed by this–takes money from his employer perhaps.  So the judge says, fine, go to the District Court, but I’m still imposing the jail time.  Then you are stuck trying to get the District Court to stay your sentence.  That is what happened in this case according to the article.

When Swain decided to appeal the case to 3rd District Court, his attorney asked Bertch to stay the sentence pending the outcome of the appeal.

Bertch refused, noting in an entry that a stay must be granted only if there is a substantial likelihood of a different outcome on appeal. The judge said he felt there was not much likelihood of a different outcome. Meanwhile, Bertch said, the sentencing provisions will protect the public from Swain.

Alcohol-related reckless driving
Ex-DUI commander is appealing his conviction
Swain given one year probation, a $782 fine and completion of a DUI education class
By Stephen Hunt
The Salt Lake Tribune
Article Last Updated: 12/14/2007 01:09:26 AM MST

The former commander of the Utah Highway Patrol’s DUI enforcement team, who last year crashed his police cruiser into a concrete barrier on Bangerter Highway near 400 West, is appealing his justice court conviction for alcohol-related reckless driving.
Fred Swain, 42, was charged in Draper City’s justice court with driving under the influence of alcohol, a class B misdemeanor, punishable by up to six months in jail.
After losing motions to suppress field tests and intoxilyzer results, Swain pleaded guilty last month to class B misdemeanor alcohol-related reckless driving.
Judge Daniel Bertch on Nov. 1 sentenced Swain to a standard sentence for first-time offenders – one year probation, a $782 fine and completion of a DUI education class. Swain was also required to install a device on his car that prevents ignition if the driver has been drinking.
When Swain decided to appeal the case to 3rd District Court, his attorney asked Bertch to stay the sentence pending the outcome of the appeal.
Bertch refused, noting in an entry that a stay must be granted only if there is a substantial likelihood of a different outcome on appeal. The judge said he felt there was not much likelihood of a different outcome. Meanwhile, Bertch said, the sentencing provisions will protect the public from Swain.
Swain is to appear before Judge Terry Christiansen
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for a pre-trial hearing on Monday.
After the crash at 2:20 a.m. on June 23, 2006, Swain, who was a lieutenant, told officers he had fallen asleep.
But investigating officers detected alcohol on Swain’s breath and observed him acting strangely – including repeatedly walking away to avoid contact with officers.
Draper Officer Kevin Easter testified during a May 14 hearing before Bertch that Swain "kept doing half-circles so I couldn’t get close to him."
Easter also testified he saw Swain eating MRE’s [Meals Ready to Eat] from the trunk of his car. Food reduces the effects of alcohol and would have lowered Swain’s blood-alcohol content, Easter said.
Swain agreed to perform field sobriety tests about 90 minutes after the crash.
He passed the heel-to-toe walk-and-turn test and the "one-legged stand," Easter said. But Swain failed a test that measures a suspect’s ability to smoothly track movement with his eyes.
In addition, a portable breath test detected alcohol on Swain’s breath.
Later, after Swain’s arrest, an intoxilyzer measured his blood-alcohol level at 0.11 percent, which exceeds Utah’s legal limit of 0.08 percent.
shunt@sltrib.com

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Posted in Utah DUI Attorney

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