Utah DUI and Your Driver License: The Saga Continues

In a previous post we talked about the Driver License Division taking away your license after you receive a DUI in Utah and what to do about it. 

Just to make it more difficult, they change the laws and rules every few years, sometimes every year, and many people don't know what to do after getting a DUI in order to keep their license. While you're busy hopping from one foot to the next, they suspend your license and make it much more difficult to keep your job, get to school, or shuffle your kids around. 

Here's a few additional tips and updates on DUI's and your license to try and prevent the DLD from suspending. If you haven't read our previous post on DUI's and your license, read that first here:

REQUEST A HEARING

It's just amazing to me how many people do not request a driver license hearing after getting a DUI. An attorney can and should do it for you but it has to be done within 10 days. No exceptions. Not even if your grandma's in the hospital. Not if your dog's sick. Not even if the series finale of Breaking Bad is on and you just can't get down to the Driver License Division. You just have to do it. 

If you can't hire an attorney right away (and as I wrote in my previous post, everyone should hire a good DUI attorney right after receiving a DUI. Most firms offer extremely flexible payment plans so take advantage of them) then you will need to request it yourself. It's easy: just go down to your nearest Driver License Division Office and request a driver license hearing for your DUI. Many people choose to do it by mail. I wouldn't recommend this. Mail gets lost or misfiled and your driver license is too important to take that risk. Just go down there and do it or hire a good DUI attorney to do it for you. 

DON'T DO THE HEARING YOURSELF

This should go without saying but many people do the DUI driver license hearing themselves and predictably lose their driver licenses. I wouldn't install my own plumbing system: you hire experts for that sort of thing. Same thing goes here. Your best shot is to have someone in the DUI hearing that knows what they're doing. 

PRIOR DUI'S: AN EASY WAY TO LOSE YOUR LICENSE

Having a prior DUI is asking for you to lose your license. Even if you win the hearing, the DLD has been pulling some sneaky tricks lately. For example, lets say a good attorney gets your DUI dropped to reckless driving or impaired driving, which shouldn't suspend your license. Well if your current DUI is your second, it still suspends, even if you're not convicted of DUI but of something else! Also, even on a first DUI, if you have another alcohol related offense on your record, you may be required to get an ignition interlock device. When enter a deal on the DUI, the Driver License Division suspends your license indefinitely stating that you were required to have an interlock device and they won't give it back unless you get one installed and get them proof. The point is: if you got a DUI, the DLD wants to take your license and will do everything possible to take it from you. 

WORK EXCEPTION LICENSES

Many states have work exception licenses granted to people who receive DUI's. For example, Nevada allows you to drive to work after serving half of your 90 day suspension on a first DUI. Utah does have a work exception, but as one employee at the DLD told us, he has never seen it granted on a DUI. You have to get the DUI reduced to see if you even qualify and then you will have a hearing and be denied. I have never, in the over 1500 DUI cases I've handled as both a prosecutor and a DUI defense attorney, seen even one of these work exception licenses granted. Don't hold your breath if you think this is a way out of your suspension. A much better way is to hire a good DUI attorney and let them do their job. 

THE DLD WANTS YOUR LICENSE

DUI's are unique crimes. You have a massive lobby group, Mothers Against Drunk Driving, who are shaping the laws to be less and less favorable to DUI offenders. The license is where they hit you the hardest. If your license is important to you, and especially if you have a special driving privlege license like a CDL, don't roll the dice just to save a few bucks on a DUI attorney. Hire one and let them deal with the headache. 

Utah DUI Penalties

You've gotten a DUI in Utah and you've heard horror stories and conflicting information about what can happen to you. A friend of your cousin's said you can get five years in prison. Your neighbor told you his roommate got a DUI in Salt Lake City and only got a fine.

So what's the truth about DUI penalties in Utah? Here's some quick facts:

JAIL/PRISON

By far, this is my clients' top priority and the number one question they have about it is: how much jail or prison time am I facing? The answer is a resounding: it depends.

On a first DUI you are technically facing six months in jail but if you pled guilty you would possibly only get the minimum mandatory of two days unless you had aggravating circumstances like a high BAC, an accident, you were a jerk to the cop, the prosecutor doesn't like you etc. On a second DUI the minimum mandatory goes up to ten days. On a third, you're now facing five years in prison with a minimum mandatory of 62.5 days. The "minimum" though set by law, varies by judge and prosecutor though so be careful. Some clients that I have tried to go it alone first and ended up getting far in excess of the minimums. When a prosecutor knows you're at their mercy, they can do whatever they want. Best not to go without representation and let that happen. And yes, I have seen first time DUI's get nearly the maximum in jail (it was a bad case though where they hit another car and disabled the other driver).

FINES

How much are you going to pay? A lot. Let me emphasize that: A LOT. DUI's are major money-makers for cities, counties and states. A single DUI in Utah, with the impound fees, license reinstatement fees, fines, attorney fees, treatment class fines, etc., could run, in total, somewhere between $5000-$20,000. The court fines are just the tip of the iceberg. A good attorney can help minimize these costs, but not get rid of them entirely. Expect to pay something.

TREATMENT

Courts love recommending lots of treatment, even though the studies suggest they have little impact on DUI offenders. Regardless, treatment will probably be part of any deal you negotiate. It can run anywhere from 4 hours of classes to 50 hours of classes depending on the treatment provider chosen. Speak with a good DUI attorney about what treatment providers are good, or get other recommendations from people you may know. You may find reviews of treatment providers online and you can research them there as well. One thing to keep in mind: many treatment providers have you pay for an assessment to determine if you need treatment and then provide the treatment too. Clearly a conflict. Government agencies usually are better on this but BE CAREFUL. Treatment costs can easily skyrocket.

DRIVER LICENSE

The suspension rules are complex and too broad a topic for a section in a blog post. You need to research them or hire an attorney (sorry to keep saying that but it's just such good advice!) and figure out which sections of the administrative rules and Utah Code apply to your case. Your license could be suspended for as little as four months or as long as three years. This is very fact specific to your case and you need some research or to consult someone knowledgeable to figure out where you fall.

WORK

You may not want your work to find out that you have a DUI. There's going to be documents filed, possibly subpoenas sent, phone calls made etc. This is something you need to be wary of if it's important to you. To be honest, the court doesn't care if you get fired over this so you're the only one that can prevent it. Getting a P.O. Box as your official address may not be a bad idea if you don't want people in the home finding out either.

COURT APPEARANCES

Sadly, this is something that can rarely be prevented. You're going to have lots of them. More if you have a good attorney, less if you have a bad one and they plead you guilty the first chance they get (unless there is a specific reason for doing so and there sometimes is). You're going to miss work, children's birthdays, soccer games etc. You just have to work with your attorney to schedule these the best way possible.

MORAL IMPLICATIONS

You may feel bad on a moral level that you committed a crime and feel that you deserve punishment. Put that out of your head right now! The prosecutor's job is to prove crimes, not make you feel bad. We all make mistakes. I have defended doctors, lawyers, politicians, Church leaders and on and on. We're human. The point is to get the best possible outcome for you, learn from the experience, and make sure it doesn't happen again. Don't beat yourself up over it if you have a DUI.

OTHER PENALTIES FOR A DUI IN UTAH

There's going to be more associated with a DUI in Utah, like ignition interlock devices, becoming an alcohol restricted driver, having your vehicle towed, having the stigma of the charge on your record etc. Frankly, there's so much that entire books have been written on DUI's. The best thing you can do is hire a good DUI attorney and begin the process as soon as possible.

By Yossof Sharifi Google

Utah DUI's and Your Driver License

So you've gotten a DUI in Utah. It's not something you normally do and now you're worried about the consequences. Aside from going to jail, what's your top priority right now? It should be keeping your driver license.

Can you imagine not being able to drive for anywhere from four months to three years? I certainly can't. Some of my clients have even told me they would be willing to go to jail if they could keep their driver licenses!

Utah is one of the strictest state's when it comes to suspending driver licenses after a DUI. You need every advantage you can get.

Here are some tips on how to keep your driver license after you get a DUI in Utah:

Hire an Attorney

I know, I know, it sounds self-serving for an attorney to say "hire an attorney." But think about it: some attorneys, myself included, do hundreds of DUI's. That means hundreds of driver license hearings to try and keep our clients' licenses. It's just common sense that the more something is practiced the better you'll be at it. The fact is, these hearings are complex and the rules are rigid. Miss one deadline, send a fax to the wrong place, call the wrong number, and your license is suspended. There are a lot of bad attorneys out there that won't do anything for you, so if you are going to hire an attorney, make sure they've done plenty of DUI's and have received at least some training in conducting DUI defense in Utah. DUI's are not like other criminal cases because of the technicalities and science involved. Law school doesn't prepare one to handle these. Your attorney should have additional training.

2

Request a Hearing with the Driver License Division

You MUST MUST MUST, request a hearing within ten days of receiving your DUI in Utah. That includes weekends, holidays, emergencies, hospitalizations, whatever. If you miss the ten day deadline, there's almost nothing that can be done. You can request a review for a late hearing, but these are rarely granted. I had one client who only spoke Spanish and the officer informed him of the hearing in English. He, obviously, missed the ten day deadline and hired us later to handle the case. The Driver License Division still would not give him a new hearing, even though he was never really given notice of the hearing. We had to appeal it all the way to the Third District Court and take the case away from the Driver License Division before anything was done. Remember, you can fax or take down your hearing request to the Driver License Division in person, but do not miss that ten day deadline. I recommend you go the day after and just get it done.

3

Get All the Reports

You're entitled to the DUI reports, blood, breath and urine results, intoxilyzer checklists and printouts, and just about everything else that is going to be introduced at the hearing. Make sure you get these early on from the Driver License Division.

4

Pick Your Issues

Attack every little irrelevant piece of information at the hearing and the hearing officer will tune you out at best and tell you to cut it out and move on at worst. Pick the best issues to attack and stick to them. Don't let the officer get away with statements like, "And then I performed the field sobriety tests and he failed." Make him describe what training he's received in performing the FST's, how many times he's performed them, and how he performed them on the night in question. Remember, the standard is so low at a hearing, you need something very wrong with the case to win. Do your homework and remember that DUI police officers are only human; they do make mistakes.

5

Appeal

If you lose the hearing, you will receive a notice in a couple of weeks letting you know the date your driver license is officially suspended. For a first DUI offense the suspension is 120 days. A second DUI is two years. You have the right to request a review of your suspension in writing to the Driver License Division. If they send a letter to you informing you that they are upholding the suspension, you can then appeal to the local district court and place the case in front of a judge instead of a hearing officer. Of course, for DUI's in Utah, the Attorney General's Office takes over at this point and the prosecutor they have handle the driver license hearings is an expert at them. She's also pleasant and a good person, but talented and aggressive so be careful. If you lose the appeal, you can try and take it up to the Utah Court of Appeals and the Utah Supreme Court, but there would have to be something seriously wrong for them to consider it.

By Yossof Sharifi Google Photo: Mclovin: From the movie Superbad

Utah DUI Checkpoints

Many people in Utah have faced a DUI checkpoint at some time or other. They are in essence a place where law enforcement know that a certain number of people at a certain time will be DUI. The checks are conducted on holidays primarily throughout the night and into early morning. DUI's most frequently occur between 10pm, when people have had a few drinks before heading to a bar or club, and until 3 am, when the bars and clubs have closed and people are heading home. Don't be surprised to see a checkpoint set up near you between those times.

What the officers are looking for are signs of impairment displayed through driving pattern; something called "cues" in their training. For example, are you swerving from one lane to the next? Are you bumping into the curb? Following too closely to the vehicle in front of you? Speeding? These are all cues that officers take into account. But once the stop is made they are looking for signs of alcohol or drug consumption such as an odor of alcoholic beverage or marijuana. That's when they will ask you to step out of the vehicle and begin the DUI investigation with the field sobriety tests.

The DUI checkpoints have to be conducted in a certain manner. For example, every third car may be randomly stopped and checked. However, this is not always the case. The police are human and they go with their guts like everyone else. Do you have dreadlocks and drive a jeep? You better bet they are going to stop you and see if they can smell marijuana or alcohol. Are you a soccer mom type with your kid in the backseat? You'll probably pass by.

A good DUI attorney will try and secure any video from the checkpoint and go through it to ensure that the stops are actually random. If they are not, the issue may be brought up in court and a legal brief, called a motion, may be filed and argued in front of the judge. If the motion is successful, it could result in the evidence being thrown out of court and the case dismissed.

Many police and prosecution agencies list reasons as to why checkpoints are in use. The reasons they list are all noble: such as reducing DUI related deaths and injuries etc. And though there is certainly some of that involved, don't be fooled into believing their motives are completely pure. DUI's are big business for every city and county in the nation. California Watch wrote a great investigative piece about exactly how much money cities pull in when they hold a DUI checkpoint which you can read here. Sadly, there's millions of dollars in it for the government and I fear that we may be seeing more checkpoints in Utah, not to stop DUI's, but because our cities and counties have budget shortfalls and these are quick and easy ways to raise revenue.

Regardless, if you have been charged with DUI from a DUI checkpoint in Utah, make sure to do your research and hire a good DUI attorney. It could mean the difference between getting your case dismissed and getting convicted.

Field Sobriety Tests in Utah DUI Cases

A DUI in Utah is not like a DUI in California. Utah has some severe penalties, most notably that you cannot receive a temporary driver license for work or school if your driver license is suspended based on the DUI. Also, there are minimum mandatory jail sentences on DUI's ranging from 2 days to 62.5 days depending on the type of DUI.

Because they are serious offenses in Utah, if you are charged with a DUI, your attorney must attack every facet of the case. No stone must be left unturned. One of the areas your DUI attorney must look at are the Field Sobriety Tests.

The FST's

There are three standardized field sobriety tests used in most jurisdictions: the horizontal gaze nystagmus, the nine-step walk and turn, and the one leg stand.

The horizontal gaze nystagmus is the officer causing the eye to track in a certain direction so that he can observe an involuntary jerking in the eye. They check smooth pursuit from right to left, sustained nystagmus at maximum deviation, and onset of nystagmus prior to a 45 degree angle.

The problem with the nystagmus test is that there are a whole host of other causes of nystagmus. Aspirin, caffeine, exposure to cigarette smoke just to name a few. Studies have also shown that a certain percentage of the population is born with naturally occurring nystagmus.

In the nine-step walk and turn, the subject is to walk down a line, turn and walk back. Easy enough, right? Wrong. These tests are not about walking in a straight line, they are about following instructions. The one leg stand is similar as the subject is told to stand on one leg and count to thirty. However, the officer couldn't care less whether you do it well, he's looking for very minute clues. Were your feet more than half an inch apart? Did your arms go above six inches? Did you turn to the left instead of the right? These are the type of details that determine whether you pass or fail the field sobriety tests.

The FST's are not science. They are subjective tests used by law enforcement to make arrests. You do have good DUI police officers who are out there making the best decisions they can with the tools they have, but these tests produce too many false positives to be relied on in criminal cases.

Hire a good DUI attorney if facing a DUI and make sure they fight the accuracy of these tests. Many cases have been won by exposing the subjectivity in these tests.

Follow Up: State Won't Release Killpack Video

As I previously noted, the State was refusing to turn over video of then-Senator Sheldon Killpack's DUI arrest.

The Salt Lake Tribune reports today that

The State Records Committee decided Thursday that dash-cam video of former Utah State Senator Sheldon Killpack's arrest for allegedly driving drunk, as well as a Utah Highway Patrol report of the incident, are public records.

However, it may take up to 30 days to turn the records over.

Are Breath Testing Machines Reliable?

One of the linch-pins of DUI enforcement in Utah is a machine called the Intoxilyzer. The latest version is called the Intoxilyzer 8000 and is manufactured by a company called CMI, Inc.

Unfortunately, we don't know if the Intoxilyzer 8000 works. In my experience and based on my research, CMI has never allowed independent researchers to test the machine to verify that it accurately measures breath alcohol levels or that those breath alcohol levels correlate to blood alcohol levels. CMI refuses to sell the machine to anyone but law enforcement agencies and will not even supply information about its software.

California DUI attorney Lawrence Taylor writes on his blog that "In the one case where the manufacturer (Draeger) obeyed a court order — from the New Jersey Supreme Court — the machine involved (AlcoTest 7110) was found to use antiquated software that failed to meet even the most basic governmental and industrial standards."

So, does the Intoxilyzer 8000 work? We don't know. But people are being convicted and often jailed based on a machine that has never been externally verified and may have inaccurate software.

Faulty Blood Tests in Denver

I recently posted my thoughts on why I became a criminal defense attorney. A recent story from the Denver Post reaffirms the importance of having good, critical defense attorneys.

An internal review of blood tests performed in Colorado Springs showed that at least 82 tests showed a higher blood-alcohol content than they should have. Hundreds of other samples are being retested to find out whether the problem manifested in other cases as well.

The Colorado Springs lab that performed these tests should be commended for trying to correct its mistakes. But this case shows that there is no such thing as a fool-proof test.