12. In addition to training, education and experience…
Father mother parent
Coach
Person human
Other ways?
12
13. State v. Sanchez, 36 P.3d 446 (N.M. App. 2001).
(“I’m not gonna do nothing. Let’s go to jail.”).
Held refusal to submit to SFSTs can be considered, in
combination with other factors, to constitute probable cause.
Other factors were minimal: odor of alcohol; blood-shot, watery
eyes; admission of drinking two beers.
Summers v. Utah, 527 F.2d 1165 (10th Cir. 1991) (provides at
least cf. support).
13
14. Probable cause to arrest without SFSTs
American Fork City v. Singleton, 2004 UT App 172 (unpub.)
(Where…defendant…had glassy, bloodshot eyes and was
slightly swaying as he talked and became belligerent and
refused to cooperate when the officer attempted to administer
SFSTs there was probable cause to arrest for DUI).
Turn it around? What’s the opposite? Let suspect go?
15. Orem v. Longoria, 2008 UT App 168.
Jury instruction re refusal to submit to field sobriety tests is
proper.
“[Y]ou may take notice of and give whatever weight you
determine to the fact that [defendant] refused to perform any
field sobriety tests.”
17. Defense motion to dismiss at the close of the prosecution’s case
Is the evidence “so [ ] inconclusive or inherently improbable
that reasonable minds must [have] reasonable doubt.” State v.
Puerto, 2002 UT App 112 (unpublished).
Odor of alcohol throughout the stop and arrest
Slurred speech throughout the stop and arrest
Admission of drinking two beers
Refusal to perform SFSTs
17
18. State v. Reyes, 2005 UT 33.
Double refusals
• Refusal to do SFSTs
• Refusal to submit to chemical test
“Firmly convinced” jury instruction.
“Firmly convinced” in closing argument
18
19. Defense counsel use of DL hearing transcript in criminal DUI case
Taylor Electric Inc. v. Fox Construction, Inc., 2012 UT App 325
(“an official transcript – one prepared by a disinterested
“official court transcriber” – may appropriately be considered
by a court in making a summary judgment determination.”
An official transcript will have been subject to cross-
examination, which driver license hearings are not, at least in
the sense that cross-examination happens in court.
Nor are driver license hearings “judicially-supervised
adversarial proceeding[s].”)
Motion in Limine available. Why not file it in every DUI case
that gets set for trial?
19
22. The original of this form and the Driver License Division copy of
the Citation must be sent within ten (10) calendar days of the
notice of arrest of the subject to:
Driver License Division
PO Box 144501
Salt Lake City, UT 84114-4501
(attn. DUI Section)
If a hearing is requested by the subject and you prefer to have
your notice sent by e-mail, fill in your e-mail address here .
Notification received by e-mail will be your only notice.
Complete for each arrest. 22
23. Tongue piercings - decision
Guy v. State, 823 N.W.2d 274 (Ind. 2005). Breath test with
tongue stud – breath result is still admissible as evidence of BAC.
27. Antiseptic defense – “The antiseptic that was used to sterilize
my client’s arm contaminated the BAC/drug result.”
Law enforcement uses iodine to sterilize needle insertion site.
Hospitals use isopropyl alcohol (“rubbing alcohol”) to sterilize
needle insertion site.
People drink ethyl alcohol, which is what the toxicology lab tests
for.
27
29. (L-SID) Label, Seal, Initial, Date
1. Label with:
– Subject’s Name (First and
Last)
– Your agency case
number
2. Seal the tubes.
3. Initial and date seals.
Complete additional label
information as required by
your agency.
30. Packaging
1. Seal, initial, date the plastic
container, if applicable.
2. Complete the Toxicology
Request Form.
3. Seal, initial, and date the
shipping box/envelope.
31. Labels and Seals
• No/missing information on
label
• No/inadequate seal
• No initials/dates on seals
• Label illegible
• Tube content obstructed
• Plastic tubes
33. Vendor Label Info
• Each vendor label has
different fields
• Some labels do not have the
minimum required
information (i.e., subject
name, agency case #).
34. Kits Arrive Separately
• If not taped together, blood
and urine from the same
subject arrive separately.
• They may be assigned
different Lab Case numbers.
• One of the two will have
missing documentation.
35. Leaks / Breaks
• Urine containers are not
properly capped.
• Blood vials are not properly
packaged to prevent
breakage.
36. In the last two weeks…
10 out of 259 rejected = 3.8% rejection rate
36
37. Spice / bath salts decision – the game we’re in
State v. Heinrichs, 845 N.W.2d 450 (Iowa App. 2013).
Possession “synthetic equivalents” of cannabis
Defense claimed due process violation
Court affirmed
Utah Code § 58-37-4.2 (“synthetic equivalents”)
38. Using Insurite
Snedeker v. Rolfe, 2007 UT App 395 (stop upheld where
computerized check indicating indicated no insurance but driver
actually has personal insurance covering vehicle).
See also, State v. Biggs, 2007 UT App 261. (stop upheld where
vehicle registered to a business and not insured is reasonable
suspicion for stop, even where driver of vehicle actually had
insurance)
“NO INSURANCE”
“INSURANCE NOT FOUND”
39. Computer check of license plate, then check of registered owner
shows DOS, was reasonable suspicion in State v. Pike, 551
N.W.2d 919 (Minn. 1996).
Computer check of license plate showed registered owner had a
warrant, was reasonable suspicion in State v. Setinich, 822
N.W.2d 9 (Minn. App. 2012).
39
41. R877-23V-5. Temporary Motor Vehicle Registration Permits
and Extension Permits Issued by Dealers Pursuant to Utah Code
Ann. Section 41-3-302.
(3) The expiration date on the original permit shall be legible
from a distance of 30 feet.
…
(4) The permit shall be displayed at the rear of the motor
vehicle, in a place where the printed information on the permit
and the expiration date may be easily seen.
41
42. (5) Temporary permits must not be placed in rear windows or
permit holders with less than seventy percent light
transparency.
(a) If a permit holder is used, it must not cover any of the printed
information on the permit, including the expiration date.
(b) If a license plate frame is used in conjunction with a permit
holder, it must not cover any printed information or expiration
date on the permit.
(c) Temporary permits must be protected from exposure to the
weather and conditions that would render them illegible.
42
43. Violation of administrative rule is reasonable suspicion
Utah Code Ann. § 41-1a-211(2): If a vehicle is operated on a
temporary permit issued under this section or Section 41-3-
302, that vehicle is subject to all other statutes, rules, and
regulations intended to control the use and operation of
vehicles on the highways.
43
44. State v. Lord, 723 N.W.2d 425 (Wis. 2006) (provides inferential
support that violating an administrative rules is reasonable
suspicion); People v. Maikhio, 293 P.3d 247 (Cal. 2011) (same).
44
46. 41-6a-1618 Sale or use of unapproved lighting equipment or devices
prohibited.
(1) Except as provided under Subsection (2), a person may not…use on
or as a part of the equipment of a motor vehicle…any head lamp,
auxiliary fog lamp, rear lamp, signal lamp, required reflector, or any
parts of that equipment which tend to change the original design or
performance, unless the part or equipment complies with the
specifications adopted under Section 41-6a-1601.
49 CFR 571.108 - Standard No. 108; Lamps, reflective devices, and
associated equipment.
46
47. No PIAs for CDL holders
49 CFR 384.226 Prohibition on masking convictions
The State must not mask, defer imposition of judgment, or allow
an individual to enter into a diversion program that would
prevent a CLP or CDL holder's conviction for any violation, in any
type of motor vehicle, of a State or local traffic control law
(other than parking, vehicle weight, or vehicle defect violations)
from appearing on the CDLIS driver record, whether the driver
was convicted for an offense committed in the State where the
driver is licensed or another State.
47
48. Keep Calm and Understand
Elonis v. United States, 135 S.Ct. 2001 (June 1, 2015).
Webinar | August 14, 2015 | 2:00PM - 3:15PM EDT
Presented by Teresa M. Garvey, AEquitas Attorney &
Joan Meier, Legal Director, Domestic Violence Legal
Empowerment and Appeals Project (DV LEAP)
48
49. Elonis v. United States, 135 S.Ct. 2001 (June 1, 2015).
Held: to convict under federal threats statute “the [necessary]
mental state is satisfied if the defendant transmits a
communication for the purpose of issuing a threat, or with the
knowledge that the communication will be viewed as a threat.”
49
50. That standard requires more than general intent and more than
negligence but we’re not telling you the answer.
The Court did not address the First Amendment defense (but
Justice Alito’s dissent did).
What are we (they?) worried about?
50
51. • 76-5-106 Harassment.
• (1) A person is guilty of harassment if, with intent to frighten
or harass another, he communicates a written or recorded
threat to commit any violent felony.
• (2) Harassment is a class B misdemeanor.
51
52. • 76-5-106.5 Stalking -- Definitions -- Injunction -- Penalties.
• (2) A person is guilty of stalking who intentionally or
knowingly engages in a course of conduct directed at a
specific person and knows or should know that the course of
conduct would cause a reasonable person:
• (a) to fear for the person’s own safety or the safety of a third
person; or
• (b) to suffer other emotional distress.
52
53. • 76-5-107 Threat of violence -- Penalty.
• (1) A person commits a threat of violence if:
• (a) the person threatens to commit any offense involving
bodily injury, death, or substantial property damage, and acts
with intent to place a person in fear of imminent serious
bodily injury, substantial bodily injury, or death; or
• (b) the person makes a threat, accompanied by a show of
immediate force or violence, to do bodily injury to another.
53
54. 76-10-1802 Misrepresentation of call or text communication
identification.
• (2) It is unlawful for any person or individual, in connection
with any telecommunications service or VoIP voice service, to
knowingly cause any caller identification service or text
message service to transmit false, misleading, or inaccurate
caller or text message identification information:
• (a) with the intent to harm the recipient of the call or text
message; or
• (b) to a public safety answering point when reporting an
emergency.
54
57. Short breakout
A challenge you face in DUI prosecution?
Solution if you have it.
If you could have any trial tool, exhibit, technology, what would
it be.
Something effective you’re doing.
Or discussion item (e.g., safety belt amendment; HB 348 penalty
reductions)
57
