Natty Shafer Law

Utah lawyer for criminal and immigration cases

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Utah Considering Lowering Legal Alcohol Limit

The Utah legislature is considering a bill that would lower the legal blood alcohol content (BAC) to .05, KUTV’s Rod Decker is reporting. It was inevitable that Utah would be among the first states to consider the change once the National Transportation Safety Board (NTSB) announced last May it was recommending a .05 BAC legal limit. Utah legislators are always quick to act whenever it allows them to appear more moral than their peers. With NTSB’s endorsement, Utah may not pass the law this legislative session, but you can bet that in the coming years it will happen.

Even though the change may be inevitable, that does not mean it is good policy. To borrow a term from economics, this is not the “lowest hanging fruit.” Utah consistently ranks among the bottom states in per capita DUI fatalities. To promote driving safety, Utah would have better results if it attacked other unsafe driving practices first: speeding, drowsy driving, or cell phone use. Every time a police officers pulls over a motorist, their attention is diverted away from policing anyone else. If officers start using resources to arrest someone with a BAC between .05 and .08 (the current legal limit), they may be missing out on a more serious offender. We have likely reached the point of diminishing returns where each incremental increase in DUI laws no longer yields a significant improvement in driver safety.

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What to Expect at the DLD Hearing

Earlier, I wrote about requesting a hearing at the Utah Driver’s License Division and how it is necessary for anyone cited for a Utah DUI to keep their driver’s licence. This post addresses what to expect at the actual hearing.

The hearing will be right at the DLD, the same place where people are standing in line to receive their driver’s licenses. Each office in Utah is a little bit different, but it is usually off to the side, with several offices for the “hearing examiners.” The attorney lets someone know that the defense is ready. Before the hearing begins, the hearing examiner may give various documents to the lawyer. For suspects who had their blood drawn, a toxicology report may be among them. Toxicology is a preliminary report that shows alcohol content, as well as the presence of certain narcotics that could lead to a Metabolite DUI.

The arresting officer usually telephones into the hearing instead of appearing in person. Once the officer has alerted the DLD they are ready, the hearing officer will usher everyone else into their office. If the officer is on the phone, the hearing examiner will put them on speaker phone so everyone can hear. Remember though, in about one-fifth of all Utah DLD hearings, the police officer fails to appear and the accused wins by default.

The hearing will observe some of the rules of a courtroom, but it is going to be a lot less formal. Usually, everyone is sitting around a desk with a land-line telephone in the middle of it. The questions do not follow the strict protocol required of courtrooms. The hearing examiner—who works for the DLD—will act as both the judge and jury. They are in no way impartial. Their bosses at the DLD review their decisions and are in charge of promotions and other incentives. The hearing examiners are inclined to believe the arresting police officers.

During the hearing, the officer needs to establish 2 things: 1) the suspect was “in actual, physical control” of the vehicle; and 2) the basis for believing the suspect was under the influence. Usually, the officer will establish the suspect was in actual, physical control by testifying the suspect was driving when they pulled them over. Other times, the officer will need to testify their basis for belief the suspect was in control, such as that they came to the scene of an accident or they approached a car with someone asleep with the keys in the ignition. To establish that someone was under the influence, officers will introduce a chemical test: a breathalyzer, blood test, or urine analysis. The officer may also testify about any field sobriety tests that were conducted.

After the police officer has given their narrative, the hearing examiner may ask some clarifying questions. The attorney will have the opportunity to question the officer next. Then the hearing examiner will give the suspect a chance to testify. Generally, it is not a good idea for the suspect to testify because hearing examiners rarely give such testimony any weight. Any discrepancies between the police officer’s testimony and the suspect’s testimony are usually resolved in the officer’s favor.

Assuming the officer does call-in to the hearing, having a lawyer is really critical for you to have any chance of prevailing at the DLD hearing. Laypeople frequently hurt themselves at the DLD hearing. Their testimony will be under oath, so anything they say could be used in a later court proceeding. Furthermore, laypeople tend to let irrelevant issues cloud their emotions and miss the pertinent issues. Only a lawyer who has seen a Utah DLD hearing before will be familiar with the facts that could decide the case in your favor. No one wants to have their driver’s license suspended for four months.

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Getting a DUI Hearing in Utah

Photo: Landi

Photo by Landii

People arrested for a DUI in Utah could have their driver’s licenses suspended from the Driver’s License Division (i.e. the DMV), in addition to facing criminal charges. To avoid this, they must request a DUI hearing. Otherwise, the license is suspended automatically, regardless of how frivolous the arrest may seem.

Utah law says anyone arrested for a DUI has 10 calendar days to request a DUI hearing. No exceptions are made for weekends, holidays, or any other non-business days. If the DLD does not receive the request before close-of-business on the 10th day, they will deny the request for a hearing. It is very important that the arrestee send in the request as soon as possible. The request can be faxed or mailed, and it is available from Utah Department of Public Safety at this link.

Generally, it is difficult to win the hearing, but it is not impossible. Sometimes people win by default. According to the Utah Department of Public Safety, there were 5,020 DUI hearings during the 2012 year, and in 1,079 of the hearings, the officer failed to appear (a little over one-fifth of the time). Another 644 people won their hearings despite the officer showing-up. The Utah Department of Public Safety does not say, but I bet nearly all of those 644 had a lawyer helping them. Altogether, someone has about a 1 in 3 chance of winning the hearing. Those are not the greatest odds, but without a hearing there is a 100% chance the DLD will suspend.

The length of the suspension depends on the particular charge and whether a person has had previous DUIs. A first time DUI usually carries a 120-day suspension, and the penalties increase from there.

If this sounds a bit complex, well it is. That why you should hire a lawyer to do it for you. A lawyer can do all the work of submitting your request to the Utah Driver’s License Division, as well as preparing for the hearing, and giving you the best chance to keep your driver’s license.

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Video Evidence Is Invaluable

More and more police cruisers in Utah are equipped with dash cams. Not every city in Utah has them, but almost every Utah Highway Patrol cruiser does. Each city varies a little on when they record. Some record all the time, others only when police officers turn it on, and others turn on automatically when the police sirens or emergency lights are engaged.

For me and my clients, I prefer if the recording is always active. There’s no chance of someone intentionally turning it off or forgetting to turn it on. Cameras that wait until a police officer turns on the emergency lights offer too little too late; a jury or judge can never see what caused the officer to pull someone over. Often a client in a DUI or drug possession type case contends that the police officer was never justified in pulling them over in the first place. People accused of driving under the influence are not often trusted by judges so when they say that they were not speeding or weaving, their testimony is given little credit. Incidentally, dash cams do not always work in the defendant’s favor, and they corroborate what the police officer reported. In those situations, the dash cam is valuable, because there is concrete evidence that everything the police officer is saying is true, and I can push for a defendant to take a plea instead of wasting time or money pursuing the case further.

The quality of the pictures continues to get better. It is likely that most people have seen dash cam footage on news broadcast or news magazines and had difficulty telling what is happening in the video. The low resolution, grainy videos give officers license to describe a video however they want. The officer can say, “It’s difficult to see, but right there, the defendant swerves.” All the judge or jury can see is a couple of taillights moving along the road, and the officer gets the benefit of the doubt.

High resolution videos today are better, and combined with microphones on many officers’ belts, we know exactly how a conversation between a suspect and an officer transpired. Even at night, the better cameras today clearly show the lanes, street signs, and other obstacles. Juries can clearly see that an officer is lying, or at least embellishing. Often an officer uses jargon in their police report. Almost every DUI report mentions a few things: the person smelled strongly of alcohol, they stumbled, they spoke slowly and slurred their speech. While we still can’t smell what the officer smells, the tapes sometimes show a lack of stumbling or drunken speech.

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Utah May Ban DUI Checkpoints

Today, the Utah House of Representatives passed a bill to prohibit the police from conducting DUI checkpoints. The Utah State Senate must also pass HB140, and then the governor would need to sign it for it to become law.

Police use DUI checkpoints by placing roadblocks on a public roadway and then they stop every vehicle or random cars and look for signs of alcohol or other impairment. The Utah bill would not affect law enforcement’s ability to look for fugitives, such as during an Amber Alert, nor would affect their ability to look for “invasive species.”

The United States Supreme Court deemed random DUI checkpoints as constitutional in the case Michigan Dept. of State Police v. Sitz. Michigan’s high court then found such checkpoints to be illegal under Michigan’s Constitution. Several other states have banned them as well.

UPDATE: HB140 never made it out of the Utah State Senate, so as of the close of the 2012 legislative session, Utah remains one of the states that allow DUI checkpoints.