A man’s DUI charge was reduced to Impaired Driving. Impaired driving will prevent loss of license or reduce a license suspension on a first offense (if the person did not refuse a chemical test). An ignition interlock device is not normally required either. However, if a person pleads to an impaired driving, and as part of the plea agreement, he has to install the device on his car for a period of time, then the person’s license is suspended until the device is installed on the vehicle. No matter how fast the ignition interlock is installed, the person still has to pay a reinstatement fee (currently $30) to the Drivers License Division. Oddly enough, even if the license was never suspended because the person had the installation done before the suspension occurred, the person still has to pay the reinstatement fee ($30), even though there was nothing to reinstate. Sounds like another way to generate revenue without justification.
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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An officer pulls you over for speeding. He asks for your license, insurance, and registration. He goes back to his car and discovers, after a computer check, the license is flagged as an "alcohol restricted driver" because you have a prior DUI or alcohol violation. The officer has no reason to believe that you have been drinking other than the flag on the license. Because of the "scarlet letter" on your license, he decides that he is going to see if you have consumed alcohol. He gets out and sticks a preliminary breath tester in your mouth. Can he do this based on the sole reason your license is flagged?
I fought this battle last month in Salt Lake. The officer admitted he smelled no alcohol, saw no signs of impairment, and the only reason for the PBT test was because of the flag on the license. The judge ruled that the officer went beyond the scope of the initial detention and had no reason to expand the search and scope of the detention by given the driver a PBT test.
This behavior is becoming more common with police officers. They are not allowed to go on a fishing expedition. Contact a good DUI attorney if this happens to you.
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Every case is different, every prosecutor is different, and every judge is different. However, Utah has developed the "Utah DUI Sentencing Matrix" as a guide for judges in sentencing a DUI defendant. Most judges will follow pretty close to the guidelines with minor exceptions. Driver license suspensions are rarely ordered by the court because the Driver License Division will administratively take care of the suspensions, alcohol restrictions, and ignition interlock issues. This can be a pitfall for defendants and attorneys that do not understand this action by the Driver License Division. Often times, people will call me and say "the Court never said anything about suspending my license or an ignition interlock device." The problem is that the Court leaves that up to the Driver License Division. In fact, I have heard Courts try to advise people of these consequences and advise in error.
The other thing the matrix is not clear on is that your total fine will be comprised of the fine, a surcharge, and a court security fee.
The 2012 Matrix is found here.
Or press here.www.utahduilawblog.com/uploads/file/2012 DUI Sentencing Matrix.pdf
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A person who is convicted of being in violation of the alcohol restricted driver law will have their license revoked for a period of one year. This is in accordance with Utah Code 53-3-220(1)(a)(xv). If you are convicted of this law under Utah Code 41-6a-530, it is a class B misdemeanor, just like an original DUI. The prosecution can prove the violation by a chemical test, evidence other than a chemical test, or a combination of a chemical tests and other evidence. For example, the prosecution can present evidence of field sobriety tests, characteristics, odors, etc.To become an alcohol restricted driver, under Utah Code 41-6a-529, the driver has had any of the following happen:
Within the last two years the driver was convicted of a DUI, a combination alcohol and reckless driving, impaired driving. These are the basics but there is a laundry list of actions that qualify for alcohol restricted driving. For the most part, the restriction is a two years. However, the alcohol restriction is life time if the driver has been convicted of a felony DUI if the felony was after July 2005.
The Department of public safety has an outline of this law here.
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The most common question I get from people is can I get a permit to drive to and from work while my driver license is suspended? The answer is an emphatically NO at this time. Utah, as the law is now, there is no work permits that would allow you to drive to and from work. Many states have this type of license. We hope in the future, the legislature will realize the need for this type of license. The problem is that a person gets the driver license suspended and they have a real hard time progressing. Many people lose their jobs because they cannot work because of the suspension. People have two choices at this point, they don’t drive and lose their job, or they drive on a suspended license and risk harsher consequences. In effect, many times the law is putting drivers on the road that have no license and probably no insurance because they feel they have to drive. I think it would benefit the general public to have work permits to allow people to drive to and from work. Adequate restrictions could be put in place to ensure public safety such as: require an ignition interlock on the car, require the prime for life class, and weekly check-in with a private probation company to monitor the person and perhaps weekly drug tests. Everyone deserves one second chance.
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Every justice court and district court in Utah is a little bit different in how they interpret the rules. Every judge require things that other judges do not. For example, the Salt Lake City Justice Court judges require a person convicted of DUI in Utah to take an additional class called the MADD Impact Panel class. Justice Courts in Ogden and other parts of the state do not require this class. Some judges will allow home confinement in lieu of jail. Some judges will not. Some judges require two days jail, others will allow 48 hours of community service. Some judges require a costly evaluation done before sentencing, others will simply sentence the day you enter a plea and give order the required prime for life class. My office is based in Ogden Utah and I am a Ogden DUI Attorney. However, I practice all over the state and I take the time, and have 15 years experience, that allows me to know the courts, the judges, and the procedures all around the state in any court. Many people think they should hire a local attorney to “grease the wheels” or hire an attorney that knows the judge and the prosecutor, rather than hire a lawyer that specializes in DUI Defense. This can be a terrible mistake. I had this line of thinking. The problem was that the local attorney got them the best deal they could, but the local attorney did not see the glaring issue that proved that the client was not guilty. It was a blood case showing positive for a drug that the client had a prescription for and the client was only pulled over for failing to use a turn signal. There was no impairment and the client had a prescription for the medicine in her system. WHY plead to anything when the client was legally driving with a legal prescription in her system. I want to be clear here, you cannot drive with any prescription in your system if you are impaired by the drug to the degree you cannot drive safely. You can drive if you are not impaired by your prescription drug. This is what the local attorney that did not specialize in DUI Defense was missing.
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Below, I discuss the seven steps through a DUI Case. A Driving Under the Influence Charge is a serious offense and is very complex. As a Board Certified DUI Defense Lawyer, I evaluate your case and look for the best possible outcome. Below, I briefly discuss requesting a driver license hearing, hiring a DUI attorney, going to court for the first time and the arraignment, requesting the evidence against you, the pretrial conference, motions to be filed, and the trial. This is an overview of how your case can proceed and will give you some idea as to how I will defend you from a DUI charge in the State of Utah.
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When we take your case to trial, we always request a jury. In Utah, you have the option to have a bench trial (with only a judge) or a jury trial. Utah law allows four jurors for a class B misdemeanor DUI offense. If the DUI is a Class A misdemeanor, Utah law allows six jurors. If the DUI is a felony DUI because there has been two prior DUI convictions or offenses within a ten year period, then Utah law allows eight jurors to hear the case.Voir Dire: The process of selecting the jury is called Voir Dire. It means “speak the truth.” This is a process where they bring in a jury pool of about 16 to 20 jurors for your average DUI case. Most of the time, the judge conducts the voir dire process meaning the judge will question the jury panel about their fitness to hear the DUI case. People can be excused from the panel for many different reasons. One of the main reasons is because they have very strong feelings about DUI because they have had some involvement with a DUI situation like being in a car accident. Once the people are removed for cause, then the jury is selected by a process where the prosecution will strike three jurors and the defense will strike three jurors. The remaining four people will be the jury to hear the case.
Jury Instructions: After the voir dire process and the jury is selected, the judge will give the jury instructions on how to judge the case. These are preliminary instructions. The judge will usually read the formal charge at this time.
Opening Statements: Both the Prosecution and Defense is allowed to give an opening statement to tell the jury their side of what the evidence will show through out the trial. The Defense has the option to reserve their opening statement until the Prosecution is finished with its case.
Evidence: Next the prosecution will call its witnesses to testify, present photographs, chemical test evidence, and any other relevant evidence. The Defense has right to cross examine any of the witnesses that testify. Once the prosecution is finished, the Defense then has the option to put on evidence. In reality, many times, the Defense will rest without putting on evidence and argue that the prosecution has not met the burden of proving beyond a reasonable doubt that the client is guilty. Once the Defense is finished, the prosecution has the option to call rebuttal witness and the Defense can then call rebuttal witnesses.
Closing Arguments: When all of the evidence has been presented to the jury by both sides, the judge will then give closing jury instructions. The prosecution will give a closing argument first. It is reasoned that because the burden is on the prosecution to prove the case, the prosecution also gets to do another argument after the Defense. So, the prosecution gives a closing statement, then the Defense gives a closing statement, and then the prosecution gives a final rebuttal statement.
Jury Deliberations and Verdict: After the closing arguments, the jury is taken to a room to deliberate and to come up with a unanimous decision about the guilt or innocence of the charge. There is no time limit on the jury. I have had juries come back in 20 minutes and others come back 8 hours later. The verdict has to be unanimous.
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In analyzing and evaluating your case, we look at possible motions to file with the court to suppress evidence that the prosecution wants to use against you. We look at everything from whether the officer had a legal reason to pull you over to whether the chemical test was correctly administered. The starting point is whether the officer had a legal reason (reasonable suspicion that you have committed a crime) to make contact with the driver. If the officer cannot articulate a legal reason to pull over the driver, then the case is dismissed because all evidence obtained after the illegal detainment is suppressed. If the officer had a legal reason to stop the driver, we look at whether the officer had a legal reason to arrest (probable cause that you have committed a crime). We analyze the field sobriety tests and all the characteristics that the officer wants to use against you to form his opinion that you were too impaired to drive your car safely. If the officer did not have a legal reason to arrest, again, the case is dismissed. Then we analyze your statements and whether they should be suppressed. We also look at whether a breath test or blood test should be suppressed because it was not administered properly. There is a myriad of motions that can be filed and argued in defending a DUI. It is important to have a lawyer that specializes in DUI Defense to look at the complex issues involved in a DUI arrest. Many times, the motions filed prior to trial is where the case is won. -
After the Arraignment, the Court will schedule a Pretrial Conference Hearing. This hearing is designed to allow possible negotiations with the prosecutor, scheduling of further hearings, scheduling of motion to suppress hearings, and/or scheduling of a trial.
The DUI Defense attorney will meet with the prosecutor to engage in negotiations. Generally, the client does not participate in this meeting. I do not want the client to participate for two reasons: First, I do not want my client to say anything to the prosecutor that would be incriminating. Second, I want to learn what I can from the prosecutor without the client interfering by voicing an opinion as to how things happened to the prosecutor.
After the meeting, the DUI Defense attorney will come out and discuss the options with the client. If the offer to plead to a lesser charge is accepted by the client, then the attorney and the client address the Court and enter a plea. The Court will then sentence the client or schedule another time for sentencing. If negotiations are unsuccessful, the client and the attorney will address the Court to either schedule further hearings or to schedule a trial date.
Law Office of Glen W. Neeley 