When can the Prosecution Appeal a Ruling in a Utah DUI case?

 Under the Utah Code, a prosecutor can appeal decisions from a Justice Court Judge to the District Court under certain circumstances.

 Utah Code 78A-7-118 states:…

(5) The prosecutor is entitled to a hearing de novo in the district court on:

(a) a final judgment of dismissal;

(b) an order arresting judgment;

(c) an order terminating the prosecution because of a finding of double jeopardy

or denial of a speedy trial;

(d) a judgment holding invalid any part of a statute or ordinance;

(e) a pretrial order excluding evidence, when the prosecutor certifies that

exclusion of that evidence prevents continued prosecution of an infraction or class C


(f) a pretrial order excluding evidence, when the prosecutor certifies that

exclusion of that evidence impairs continued prosecution of a class B misdemeanor; or

(g) an order granting a motion to withdraw a plea of guilty or no contest.

The certification means nothing as a consequence.  Even if the prosecution loses, they can continue the prosecution even though the certify that their case is impaired by the exclusion of evidence. 

Here is an example of this.  I have been defending a man over the past year and a half.  The justice court judge ruled that the breath test procedures were not followed and that my client had acid reflux disease that clearly brings the breath test result into question.  The judge ruled the breath test evidence to be excluded.  Once the justice court judge made that ruling, the prosecution was able to delay prosecution while the ruling was appealed to the District Court.  The District Court affirmed the ruling.  The prosecutor chose to still prosecute the case without the breath test with the theory that my client was too impaired to drive safely.  In spite of the officer’s descriptions of my client weaving, making wide turns, slow and slurred speech, total failure on the field tests, and balance problems, the jury rendered the correct decision based on the lack of evidence.  What the prosecution cannot do is appeal the jury’s verdict of Not Guilty.  The case ends there. There is no provision for the government to appeal a jury’s verdict of Not Guilty.

Allowing appeals from the prosecution was instituted in the last couple of years.  It is now becoming common place and the District Courts and Justice Courts are becoming bogged down with cases being delayed by the appeals process.  The problem is that the prosecution can do nothing on the case in the justice court, lose the battle, but then win the war at the District Court with surprise witnesses and evidence.

Troyer and its progeny (Utah Appellate Court Cases) regulated prosecution abuse of appealing everything without consequence.  Troyer required the prosecution to dismiss the case with prejudice before the appeal.  If the prosecution won the appeal, the prosecution could proceed on.  If the prosecution lost the appeal, the case was over.  Statutorily, however, the legislature has made an attempt with the requirement that the case be dismissed with prejudice prior to the prosecutions’ appeal.  The problem is that there are two different statutes that allow appeal.  One is for Justice Court, the other is for District Court appeals to the Utah appellate courts.  They are not the same and have caused confusion.

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