The “Hidden” DUI Law in Utah
You Do Not Understand The Law Regarding Driving Under the Influence in Utah
THE RULE: Actual Physical Control (APC) Of A “Vehicle” + “Impairment” = DUI
VEHICLE: Means any device upon which a person may be drawn or transported on a highway except those devices on stationary tracks. Please note that this includes boats, ATV’s, Snowmobiles, and even bicycles , even though these are not used on a highway.
ACTUAL PHYSICAL CONTROL: (APC) An easy definition is as follows; if the keys to the device are in the ignition, and you are in the vehicle, you are in ACTUAL PHYSICAL CONTROL. Thus sleeping in the back seat of a car even with radio playing, is actual physical control and you can be charged with a DUI. Remember there is NO INTENT element for DUI, so if you for example intend to use UBER, and the UBER driver is right there waiting for you, and you get out of the UBER car to go fetch your coat from your parked car, as soon as you touch that car you are DUI – even without driving and even with the UBER driver saying he is there to pick you up. This is callled “strict liability” and it’s an awful difficult theory for people to understand because it is totally unlike the rest of our criminal law statutes that require intent.
IMPAIRMENT: Whatever the police officer says it is: bloodshot eyes, problems getting license and registration, and most of all: “failing” the SFST’s which are not proven to predict impairment in sober people much less drunk drivers.
Utah has some of the harshest laws against impaired driving in America. The worst part is, that instead of looking for visibly impaired drivers, who are driving improperly, Utah police routinely “fish” for DUI’s by stopping people almost randomly for bogus traffic infractions, such as failure to signal for two seconds before changing lanes, etc., in an effort to “sniff” test the driver. No smell of alcohol equals a warning, and any smell of alcohol, even from occupants, warrants a full fledged investigation using unfortunately, unproven field sobriety tests and inaccurate Intoxilyzers; snaring innocent people intending to obey the law, in the criminal justice system, which then treats them as any other criminal.
If you understood how the Intoxilyzer 8000 worked you would freak out. Period, no argument, ALL SCIENCE: Current Intoxilyzer 8000’s which every police department employs for breath testing USE PRE-PROGRAMMED AVERAGES FOR BREATH TEMPERATURE (34.1 C), PARTITION RATIO (2100:1) AND BREATH CHAMBER VOLUME (80CC); when it is a fact that each one of these affects the end result. Breath Temperature? 6.7 % up or down for each degree F of temperature. Partition Ratio? The human range for Partition Ratios ranges from 1500:1 – 3300:1, period. Not a single scientist or physician would disagree, ever. But the machine uses a pre-programmed ratio of 2100:1 – the manufacturer does not dispute this, it is contained in the instruction manual, period. So if you have a lower or higher partition ratio (simply how your lungs exchange air) you may be at a .05 BLOOD BAC, for example, but your reading on the Intoxilyzer 8000 can range from either .040 BAC (or half the legal limit) to .160 BAC (double the legal limit). If this isn’t the most amazing thing in Utah DUI enforcement right now, I’d like to know what is.
The Mistake Of The .05 Legal Limit. .05 Ain’t The Limit! Many people make the mistake of concentrating on .05 as the legal limit, and although they are partially correct; that is only one part of the two – pronged statute. In Utah, one can be arrested for having ACTUAL PHYSICAL CONTROL of a VEHICLE with either: (1) Per Se – Having an alcohol concentration of .05 or greater in blood or breath testing, the one everybody is used to, OR; (2) Impairment – Having ANY alcohol OR any measurable amount of ANY drug in one’s blood, such that one is “impaired,” which is from the officer’s point of view, using the field tests (SFST’s) to make that judgment. (.040 will get you a DUI every day of the week when you don’t pass the field tests, and surprise, no one does, (including a U. of Utah gymnast ranked 10th in the nation on the balance beam).
Warning ! – IMPAIRMENT MEANS SOMETHING OTHER THAN YOU THINK:
You likely think that if you took a sip of alcohol as part of a toast at a wedding, you are certainly OK to drive, and between you and me and God, you certainly are. But if you want to understand Utah DUI law enforcement you need to understand a very critical lynch pin in the arrest process. The arrest for DU isn’t based on your ability to drive AT ALL. Rather it is based on your ability, on the side of the road with traffic, to perform a series of nearly impossible physical balance exercises that have NEVER been tested on sober people to see if they actually indicate impairment. (Yes, you should find that amazing). Instead they have only been tested on already stopped suspected drunk drivers and their percentage of accuracy is based on the number of those drivers, already drunk, that THEY MISSED DESIGNATING AS IMPAIRED. In other words, these tests are 88% accurate in the sense that they are able to pick out 88% of drunk drivers already stopped, and miss 12% of them and let them go free. What they were never intended to do, nor have ever been tested for, is to determine the difference between sober people and drunk people. This means the following , so I don’t confuse you: it may well be that if we tested 1000 perfectly sober people 850 would fail in that impairment would be indicated by their performance; that would mean that 85% of sober people would fail – it might be lower it might be higher, we just DON’T KNOW! Therefore, the tests the SFST’s that the cops depend on to arrest you are completely fallacious.
ONE SIP OF ALCOHOL CAN EQUAL A DUI
If you have even a sip of alcohol, or took a Lortab three days ago; if you “fail” those field sobriety tests, which have NEVER been demonstrated to distinguish between sober and impaired drivers, you ARE deemed impaired and you will get a DUI. Most people, even after arrest forget one very important point – the driver is arrested before they are asked to take an Intoxilyzer test – very simply; every DUI is arrested and charged before the officer knows the result of the Intoxilyzer or Drug test. Those “Standardized Field Sobriety Tests,” are anything but standardized and they are not tests.
Now, conservatives and republicans (I’m joking… kind of) may be saying the following about Utah DUI law: “Dave, gimme a break, you aren’t telling me that officers are arresting innocent people MOST of the time are you?” To which I’d answer no, of course not. But at the same time, better than 75% of ALL DUI arrests in Utah start not with a bad driving pattern like you’d expect, they start with a routine traffic stop that turns into a DUI because the driver admitted that they had two beers or took their medication – after the cop routinely asked them “have you been drinking tonight your eyes look a little funny.” This includes people who would have gotten home safely except for their broken taillight. It includes elderly people who take heart medication and can’t possibly complete the SFST’s tests in the street, or for that matter at their physical therapist’s office – they just can’t do them because they are impossible to perform and they are subjectively scored. So however conservative you may be get this: it is true that there is a good percentage of DUI’s (about 30%) that are really impaired, both you and I would agree that the person isnt fit to drive, but it also includes your 60 year old Aunt Betsy that admitted she took her ambien last night and who has two hip replacements – swear to God. And that percentage split should bother you because as a country we gave out 1.6 MILLION DUI’s in the last year (15,000 in Utah) and the majority of those people were impaired ONLY because of the failure to perform untested and unproven, totally unproven field tests on the side of the road.
*One of your first steps should be hiring an attorney that specializes in Utah DUI Defense. And that is all I do. You may not like my NYC personality (can’t help it that’s where I came from), but I will tell you 100% of the truth about the frightening reality you are about to enter into – and being a good person that has never been arrested before counts for absolutely ZERO, so don’t even go there.
Read On Using The Pull Down Menus Under “The DUI Law In Utah” Section And Become Educated About Utah DUI Law, and Learn How To Successfully Defend Your Case . . .
New Utah DUI Law Carries Enhanced Penalties As Of 07/01/2011, Including:
Just another Reason Why an Experienced Utah DUI Attorney can actually Save you Money.
A Mandatory Ignition Interlock (IID) Installation For First Time DUI Offenses (Cost: $80.00 / month);
Now anyone convicted of a DUI, even with no priors now has to have an IID installed in any and ALL vehicles they own or operate for eighteen (18) months following the conviction ($75- 150 / month);
If your Blood Alcohol Concentration (BAC) was over .159 (breath) you must have supervised probation with a probation officer and you must have to random drug and alcohol tests for twelve months following conviction.
The new DUI rules apply to everyone. They are mandatory. It does not matter if you have a completely clean criminal record, a perfect driving record, and a temple recommend; if you are convicted of a DUI, the judgeMUST impose these restrictions.
If convicted of a DUI in Utah you MUST:
Utah First Time DUI Penalties:
Suspend your driving license for one hundred and twenty (120) days;
Abstain from alcohol Or drugs For twelve (12) months;
Pay a $1,405 dollar fine;
No criminal offenses for twelve (12) months;
Get a drug and alcohol assessment ($150) and comply with any treatment recommendations;
Complete a sixteen (16) hour alcohol class called prime for life ($175);
Complete a MADD Victim Impact Panel ($20);
Serve two (2) days jail or community service (BAC Over .179 = jail, about 90% of time)
Install an Ignition Interlock Device (IID) for eighteen (18) months ($1,500)
Any DUI conviction after a second DUI conviction within ten years is a felony. Any refusal to take a chemical test is 18 month revocation for first refusal and 24 months for second or subsequent refusal. Interlock required for three years.2015_dui_sentencing_matrix