Law Office of Glen W. Neeley

Top Utah DUI Attorney, Board Certified in DUI Defense by the National College of DUI Defense

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  • Utah DUI–Saving Your Driver’s License

    If you are arrested for DUI, one of the first things you have to deal with is your license. Normally, an officer will take your Utah driver’s license and issue you a citation. That citation will tell most people that the citation acts as a driver’s license for 29 days. In small print at the bottom of that citation, it will tell you that you have to request a hearing with in 10 days of your arrest. The DMV is sticklers on this point. Do this request within 10 days or you have no chance. Recently, the law was changed so you cannot appeal the DMV action of taking your license if you do not make that request within the 10 days. Even if you are one day late, the DMV will take your license.

    Once the request is made, a notice will be sent to you (and your lawyer if you have hired one) telling you the hearing date and time. This hearing has to be given to you prior to your temporary driving privileges being suspended, which is with in the 29 days.

    Most of these hearings are conducted by telephone. Recently, the DMV has restricted the due process in these hearings. The officer will testify first and tell the hearing judge what happened from his point of view. The citizen is then given an opportunity to testify. The citizen (or lawyer) will then make a closing statement of why you should not lose your license. The restriction that has recently come in to play is that the attorney or citizen has no right to cross examine the arresting officer. The officer can say whatever he wants without being questioned about it.

    You will not receive a ruling or decision that day. You will receive the decision by mail within one or two weeks. If the department takes action on your license and suspends it, you may already be suspended by the time you get the letter. Do not drive after the 29 days have expired.

    Chances of Winning: At this level, your chances of winning are very poor. Sometimes there is a small chance the officer will not show up. This rarely happens anymore. If you want to pursue your driver’s license, you must file an appeal with the District Court and ask the District Court to overturn the DMV’s ruling. Your chances of winning at this stage increase greatly. I suggest having a lawyer throughout each stage of this process.

  • Preliminary Breath Test (PBT)

    A Preliminary Breath Tester (often referred to as a PBT) is a small handheld breath tester that an officer will administer on the street when investigating a citizen for DUI. In Utah, most Courts will not allow the result of a PBT into evidence and will not allow the jury to hear evidence about a PBT. However, some judges will allow an Officer testify that he administered the PBT, but that it only showed positive for alcohol. In my opinion, this is deceiving to the jury. Here are some frequently asked questions about the PBT.

    • Do I have to take the PBT? No. There is no consequence if a person refuses to blow into a PBT. A PBT is not a device that is calibrated on a regular basis by the police, it does not check for alcohol in your mouth, and can be very inaccurate.
    • Will I lose my license if I refuse a PBT? No. Consequences to your license applies to other chemical tests such as an intoxilyzer or a blood draw. The PBT is considered a field sobriety test by most courts in Utah.
    • Can I request to see the results of the PBT? Absolutely, but the officer does not have to show you those results. Some officer will tell you. Other officers will tell you it just says positive for alcohol. Some officers will just not let you see it. Always request to see the result and make a mental note of what the officer says or does.

  • Field Sobriety Tests, Should I do them?

    Sometimes people are under the assumption that if an officer asks me to do something, they must do it. This scenario frequently happens when an officer requests a citizen to perform roadside field sobriety tests. “Do I have to do these tests?” The quick and easy answer to this is absolutely not. Many times an officer will pull a citizen over, make contact with the person, and smell alcohol. Many times an officer is pulling a person over for a minor traffic offense just to see if they can smell alcohol. Then, the officer says, “I just want to make sure you are okay to drive, I want you to perform some tests for me.” Many people mistakenly think they can prove their innocence to the officer and say sure no problem. You have a choice here. You can say “sure, no problem” or “you can say I’m sorry officer, I do not trust your grading criteria, I do not trust the accuracy of your tests, and I do not trust you. I do not want to take your tests.”  

       
    Oh no, you just told an officer that you were not going to provide any more evidence to him!  What are the consequences? Some officers will arrest you and build their weak case from other clues of impairment. Some officers will realize they do not have enough evidence and let you go. (Rarely happens). Either you will most likely be going to jail if you the officer believes he smells alcohol. You can either go to jail having provided them evidence of your field sobriety tests, or you can go to jail with the officer mad because he has little evidence against you. You will increase your attorney’s chances of winning your case if you provide no evidence. Just so we are clear, there is no law that requires you to do field sobriety tests. There is no crime or punishment related to your failure to do field sobriety tests. Do not let an officer coerce you in to doing field sobriety tests. You will not pass them, even if you feel you do. Very rarely will an officer admit that a citizen that he arrested did fabulous on the field sobriety tests.

  • Utah DUI Case Evaluation


  • Intoxilzyer Test–Should I take one?

           I am often asked, “should I take the intoxilyzer test.” There is no easy yes or no answer to this question. If you take the test, you are providing evidence to the government that is difficult to dispute. If you don’t take the test, you are looking at a possible 18 months suspension (or more if you have prior DUI incidents) of your driving privileges and the imposition of an ignition interlock device to be placed in your car for three years.

         If there was absolutely no alcohol in my body, then yes, I would take the test.  If you have been consuming alcohol, you have to weigh your options. Do not believe that you are below the legal limit just because you have not consumed much alcohol. Too many clients tell me, “honestly, I didn’t think I would be that high.” Do not assume you can beat the test. I own an intoxilyzer 5000en. I can get high results from breath sprays, mouth wash, and even bread. The machine is a conviction box and in my opinion is not an accurate means of measuring alcohol in your body. It is an indirect measurement of what is in your blood. The machine makes assumptions that all people have the same blood to breath ratio. The machine makes the assumption that everyone’s body temperature is the same. As an attorney, it is much easier to defend you when you have refused to blow into the machine. 

        Personally, I would rather have a suspended driver’s license and the other restrictions, than to have a conviction on my record. Even if you do decide you are going to take the test, you could still have many of the exact same restrictions. If your breath test is .16 or above, the Court is most likely going to impose the ignition interlock device. Sometimes judges impose the device regardless of your result. 

        If  you are a drinker, make your decision now whether you want to take the test.  Don’t be the person that says, “I will never get pulled over.” I have had clients educate themselves and realize that these machines are not reliable and accurate. Utah only requires the officer to take one breath sample when testing you. Many other states require two samples that must agree within a certain percent. It’s like my father always said, “measure twice, cut once.” The Utah breath test program is archaic and out of date according to the experts.  The leading experts, nationally and worldwide, all agree that at least two breath tests are required when dealing a DUI. In Utah, the officer’s agenda is to put a citizen through field sobriety tests and then get the answer wanted from the machine without any question. 

        Make your decision before it happens. Question the officer about his machine and his agenda. Ask him, “if I blow below the limit, are you going to let me go?” “Can you give me a more accurate blood test instead?” Tell the officer you do not trust the machine. 

  • Utah DUI Sentencing Aftermath

    Here is a story that was in the Standard Examiner regarding issues of violating probation and driving while your license was suspended.  This was published June 13, 2007.

    What if Paris were in Utah?
    Local attorneys talk about how DUI sentences compare
    BY JESSE FRUHWIRTH
    Standard-Examiner Davis Bureau jfruhwirth@standard.net

    FARMINGTON — While nationwide pundits decide whether Paris Hilton’s “celebrity justice” means she’s being let off easy or treated too harshly, two local attorneys agree her sentence has been comparable to “Utah justice.”
    Neither
    Deputy Davis County Attorney Richard Larsen nor Ogdenbased defense attorney Glen Neeley claim to be experts on California’s DUI laws. Each state legislature sets its own rules on how driving under the influence of drugs or alcohol is to be penalized.
    Both men, however, have extensive courtroom experience with Utah’s DUI laws. They answered questions on how a defendant who had been convicted of a first DUI and twice caught driving on a subsequently suspended license might fare in Top of Utah courts.
    First-time DUI offenders, Larsen said, will usually receive a sentence similar to Hilton’s.
    “It is fairly standard in Utah. The fine is $1,332, then a requirement of either two days in jail or 48 hours of community service,” he said. “Generally, what happens is, the judge allows the community service.”
    More punishment, Neeley added, comes from the driver’s license suspension, which forbids the recent DUI offender from getting behind the wheel for any reason.
    “You’ll get 90 days suspension for a first offense,” Neeley said. “Your second offense is one year. … In Utah, it’s black and white. Other states have a ‘needs necessary’ license, but Utah has no permit for driving to work.”
    Even then, the punishment is not over, and this is before any probation violations occur.
    “If your license is suspended for a DUI, you’re normally going to have an ‘alcohol-restricted license,’ ” Neeley said.
    New in 2005, the sometimes-referred-to “not-adrop” law states that, for two years, first-time DUI offenders are not allowed to operate a vehicle if they have even the slightest amount of alcohol in their system.
    Nonoffenders can consume alcohol and operate a vehicle lawfully, provided the driver’s blood-alcohol level is lower than 0.08.
    Violating the 90-day suspension — even while completely sober — or the twoyear alcohol restriction usually won’t land a person in jail, Neeley said.
    “It can be jail time, but if it’s the first time they’ve been caught, it’s usually just a fine, community service, things like that,” he said.
    But there is no framework for penalizing probation violators the way there is for the initial DUI, Larsen said, so a judge is legally allowed to sentence up to six months in jail.
    “When you get to the point of a probation violation … ultimately, it’s the judge that makes the final decision,” he said.
    Depending on the community, Larsen said, courts will consider jail overcrowding when sentencing a first-time probation violator. Also, he said, Top of Utah courts typically allow work release to individuals who have steady employment.
    “If somebody has a job, we generally consider it to be in the community’s best interest to allow them to keep working rather than causing them to lose their jobs,” Larsen said.
    Of course, people on work release won’t be able to drive themselves to their job. They’ll need to take the bus or catch a ride from someone else.
    But what about a second probation violation? Could a person really evade jail time after a second violation of a court order?
    “They may not get jail time if the defendant understands the circumstances and is getting the message,” Larsen said, “and if not, a judge asks, ‘What can I do to get through to this defendant?’ ”
    It appears as if Hilton, after two probation violations, might serve as many as 40 more days in jail.
    Both Neeley and Larsen stopped short of saying whether that is unusual. They agree that it simply depends on the policies, attitudes and judgments of the judge.

  • Utah DUI–Could the .08 alcohol limit even be reduced lower?

    Utah has one of the most stringent alcohol limits in the country.  Not long ago, the alcohol breath/blood limit was .10.  Pressure from sources that advocate against drinking caused most, if not all, states to reduce the limit to a .08.  Just a couple of years ago, Utah legislators wrote in certain criteria where a person cannot have alcohol in  their system that is .05 or above.  This involves a second offense and having children in the car.  The question is when will it go lower, "not if."  Here is an article where Britain is looking at this very issue.

    Drink drive limit to be reduced
    By David Millward, Transport Correspondent
    Last Updated: 12:56am BST 17/06/2007

    Bypass surgery may cause drink problem
    The drink drive limit could be cut under plans being considered by the Government.

    Stephen Ladyman, the roads minister, said that the Department for Transport would produce proposals for consultation later in the year.

    advertisementThe Government first hinted that it was ready to reduce the limit – probably from UK is 80 milligrams of alcohol in 100 millilitres of blood to 50 in February.

    Ministers have come under mounting pressure to do so from road safety groups and also the British Medical Association to act.

    Earlier this year several police forces voiced alarm that the "do not drink and drive" message was not getting through, especially to young motorists.

    The Department for Transport’s own figures showed that there were 1,050 17-19 year olds involved in drink drive accidents in 2005, compared to 810 a decade ago.

    Yesterday a pan-European study showed that drink driving was the cause of an increasing proportion of fatalities on the country’s roads.

    Motoring groups believe the Government could act if it is convinced that its strategy of strict enforcement of existing limits was no longer working.

    Last night a DfT spokesman said: “As part of our latest road safety review in February we said we would keep under review the case for a lower drink drive limit.

    “The UK already has stringent penalties for drink driving, and better enforcement than many countries, but that doesn’t mean we can’t do better.

    “We have said many times that we plan to explore ways of making drink driving enforcement easier for police. This will take the form of a consultation later in the year – and until that is complete it is impossible to say what measures may or may not be taken forward.”

    www.telegraph.co.uk/news/main.jhtml

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