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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Utah DUI and Concealed Weapons Permit

Many people do not understand the hidden consequences of a DUI.  One such hidden consequence is the denial of obtaining a concealed weapons permit.  If a citizen already has a weapons permit, it will be revoked.  In fact, the code says you cannot have a permit or your permit can be revoked or suspended if you have had any crime involving drugs, alcohol, or a domestic violence charge.  Utah Code 53-3-704(2)(a) states:

(2) (a) The bureau may deny, suspend, or revoke a concealed firearm permit if the applicant or permit holder:
(i) has been or is convicted of a felony;
(ii) has been or is convicted of a crime of violence;
(iii) has been or is convicted of an offense involving the use of alcohol;
(iv) has been or is convicted of an offense involving the unlawful use of narcotics
or other controlled substances;
(v) has been or is convicted of an offense involving moral turpitude; (vi) has been or is convicted of an offense involving domestic violence; (vii) has been or is adjudicated by a state or federal court as mentally incompetent, unless the adjudication has been withdrawn or reversed; and
(viii) is not qualified to purchase and possess a firearm pursuant to Section
76-10-503 and federal law. 



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Court Ordered Ignition Interlock Device

 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.

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Can an officer Breath Test me for no reason?

 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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What will happen to me at Sentencing for a Utah DUI?

 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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Utah Alcohol Restricted Driver

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. 

Read more ›

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No Work Permits during a Utah DUI Driver License Suspension Period

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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