Utah DUI Attorney

Are Utah DUI Breath Test Machines Accurate?

Glen Neeley — Wed, 17 Feb 2010 10:10:07 -0700

Utah uses two machines that are manufactured by the same company. Both work on the same principles. The newest machine is the intoxilyzer 8000. This is the most common machine that is being used at this point because it is mobile. It can be carried in an officer's car. Every night, in Salt Lake City, there is a DUI squad of officers circling around bars waiting to pull people over for minor infractions. If the officer does not have the 8000 machine with him, he calls the carrying officer to bring the machine to the place where he has a person under investigation for DUI. The 5000EN is used in Utah, but seems to be phasing out and replaced by the 8000. The question, are the machines accurate? If you take a breath test, you would hope that it tests your system for alcohol.

A recent study showed that not to be the case. A man was in the park, allegedly very inebriated. He presented himself as being lethargic, having slurred speech, and ataxia. He looked drunk. He was tested by the officers with a 5000EN machine. The result was .288, which is almost 4 times the legal limit.

He was taken to the hospital. The hospital ran a blood test on the man and found no alcohol in his system. Instead, methanol was found in his system. The man was suicidal and drank a gas line anti-freeze known as Heet. The breath test machine read methanol as being alcohol. What if a person works with chemicals all day long and absorbs these chemicals into the blood system. The person is then pulled over for some small infraction, like a license plate light out, and tested for alcohol? The machine says the man is guilty of being over a .08 and should be convicted of DUI, when in fact the machine was in error. The article is below.

www.utahduilawblog.com/uploads/file/Intox-EN-MeOH (1).pdf

Utah DUI on a Bicycle, Really???

Glen Neeley — Wed, 30 Dec 2009 22:35:14 -0700

Beware, ride with an alcohol limit at or over a .08, you can be charged with DUI. It's true. It has happened in Vernal. The first of its kind in Utah, that I have heard. There are old cases of riding a horse while drunk. But really, a bike? I mean if a person chooses to ride a bike to the bar, isn't the person doing what we want. They are not driving the 5K lb vehicle. But here is what the legislature did. Utah Code 41-6a-501 states a "Vehicle" or "motor vehicle" means a vehicle or motor vehicle as defined in Section 41-6a-102; and
(ii) "Vehicle" or "motor vehicle" includes:
(A) an off-highway vehicle as defined under Section 41-22-2; and
(B) a motorboat as defined in Section 73-18-2.

Utah Code 41-6a-102 defines a vehicle as any device. "Vehicle" means a device in, on, or by which a person or property is or may be transported or drawn on a highway, except devices used exclusively on stationary rails or tracks.

Here is the slippery slope. If bike fits the definition, then scooters, then rollerblades, then running shoes??? This just gets absurd.

Here's the Vernal Story headlined "Utah Drunk Biking Laws."

Wednesday, December 30,2009
Utah Drunk Biking Laws
Judge upholds DUI for drunk bicycler
By Jesse Fruhwirth

A recent ruling by a Vernal judge that Utah’s nebulous driving under the influence law applies to bicyclists has some attorneys and cyclists perplexed.

Some suggest that if the DUI law applies to bikes, then perhaps cyclists could be arrested for DUI while just walking their bikes, just as drivers are arrested for DUI while just sitting inside a stationary automobile.

Following the court’s logic in the drunken-biking case, some suggest even tennis shoes or high heels could be construed as a “vehicle” and thus walking drunk in them could garner a DUI. The confusion may be cleared up, however, as the drunken-cyclist defendant plans to appeal his case to the Utah Supreme Court.

The debate arises from a Dec. 14 ruling by 8th District Judge A. Lynn Payne in a case against a Nevada man, Keith Solmo, who was arrested for DUI after biking away from a Vernal bar in June 2008. City Weekly wrote about the case earlier this year [see “Wheels of Justice,” April 1].

Solmo’s defense attorney, Dave Rosenbloom, argued that Utah’s DUI law has been haphazardly amended over the past 20 years, leaving it unclear whether bikes are really a “vehicle” as defined in the statute. That’s crucial because, unlike motor boats and off-highway vehicles, bicycles are not listed explicitly. The law defines “vehicle” as “a device in, on, or by which a person or property is or may be transported or drawn on a highway.”

Rosenbloom argues that an ordinary person can’t tell from that definition whether bicycles are included, and thus it is unconstitutionally vague.

The judge disagreed. He wrote that the definition is “broad and inclusive, rather than exclusive” and that “the plain language of the definition of a vehicle includes bicycles.”

Rosenbloom says Solmo will appeal the ruling, hoping to invalidate his conviction and force the Legislature to rewrite the law. Rosenbloom admits it’s a high-stakes appeal because it’s rare today for cyclists to receive a DUI charge. But if the high court agrees with the Vernal judge, it would send a message to law enforcement statewide that “DUI-bike” is the law of the land, and that could have wide-ranging consequences.

“The problem is when cops learn that they can charge something like this, then they’ll start stopping people,” Rosenbloom says. “Taken to its horrible end, [imagine] Moab in the spring.

If a bicyclist is weaving, can he be pulled over for probable cause?” That’s not the most horrible—or absurd— end that some ponder. Ogden DUI defense attorney Glen Neeley asks, if a bike is a vehicle, what other “vehicles” could be included in the law?

“All of the sudden, do we have DUI-rollerblades, skateboard, scooter, whatever? Then the slippery slope is in your running shoes. It’s a device to help you run on the highway, then boom, you have DUI-tennis shoes,” Neeley says. “I wonder how far the Supreme Court would go.”

A first-time DUI in Utah brings a mandatory 48 hours in jail, home confinement or community service; either substance-abuse treatment or an educational class; and a fine of at least $700. While the law does not explicitly include bikes in the criminal penalties section of the DUI law, it does exempt cyclists and other users of a “device propelled by human power” from a driver-license suspension for a DUI conviction.

Deb Henry, an avid bicyclist in Salt Lake City who describes herself as “libertarian-ish,” worries that if bicyclists are targeted for DUI enforcement, they may choose to drive a car instead. “There is no doubt in my mind that riding a bicycle after a few drinks is dangerous, but it’s also dangerous to wear high heels and drink. The difference [is] that the person drinking is the one getting hurt, unlike in motor vehicles where you are getting into a weapon—a car—which can do massive damage.”

Henry cited a February 2001 study published in the Journal of the American Medical Association that found cyclists with a blood-alcohol content of .08—the legal limit for DUI—are 20 times more likely than a sober cyclist to suffer a serious injury or death. Even a biker with blood-alcohol content of only .02, the researchers found, is five times more likely to be seriously hurt or killed.

Of the 2,740 fatal Utah road crashes between 1998 and 2007, however, only 60 involved a bicyclist, according to the Utah Department of Public Safety. In the 2007 Crash Summary compiled by the department’s Highway Safety Office, the most recent data available, drug or alcohol impairment does not register among the contributing factors to bicycle crashes. The leading contributing factor to bike crashes—10 percent—is the cyclist driving on the wrong side of the road. In 33 percent of bike crashes, however, the cyclist was doing everything correctly.

While Vernal City Prosecutor Clark McClellan did not return calls for comment, Salt Lake City Prosecutor Sim Gill says criminal laws should be applied to create a better, safer world, and he’s skeptical that DUI charges against cyclists accomplishes that.

“I’m a prosecutor trying to solve a problem. It’s not just to push the technical applications of the law to absurdist conclusions. The problem I’m trying to solve is drunk drivers in cars killing people, not people on bikes.”

In “99 out of 100” cases of drunken biking, Gill says, he would probably choose to file the more-minor public-intoxication citation, even if the Supreme Court removed all doubt that DUIs can be charged against them. But if, for example, a drunken cyclist were cruising down a hill, over the speed limit, and then injured or killed a pedestrian, Gill would lean toward filing a DUI charge.

Neeley, however, worries that one high-profile case of drunken biking involving an injury to a pedestrian could spur a new era of DUI enforcement against cyclists.

“The problem is prosecutors always say, ‘Oh, we’ll be responsible with this.’ Then it’s the camel getting his nose in the tent. An extreme prosecutor can take that and run with it how he will,” Neeley says. “If you see a bike swerving on the road, pull them over. Let’s start Breathalyzing these people.”

Salt Lake City Bicycle Collective Executive Director Jonathan Morrison worries, however, that if cyclists do not live up to all the responsibilities of motor-vehicle drivers, then the courts and lawmakers may also give them fewer rights. He worries that a series of laws and court rulings that treat bikes and cars differently could lead to bicyclists becoming second-class users of the roadway.

“Right now we’re the same. We’re considered a legal vehicle in the eyes of the law. ….[But] most motorists do not believe cyclists have a right to the road. The one thing that would make me cry is if they were right.”

Five Tips on Defending a Federal DUI in Utah

Glen Neeley — Wed, 02 Dec 2009 16:32:36 -0700

For the eight months, I have been defending a man that was accused of a DUI occurring on Hill Air Force Base. The man was exiting out of an inbound gate at 5:30 a.m. (All traffic, both lanes were inbound with no exit). The man pulled to the side and the cops arrived and smelled alcohol. The man was given Field Sobriety Tests and then a breath test that read .139. (The limit being .08) . The case was dismissed today.

Here are five tips in defending a Federal DUI.

The first thing you have to know is that in Federal Court, a person is not entitled to a jury trial. The trial is held before a judge only. Do not make the judge mad and be prepared at all times!
Next, because there is no jury, do not hold anything back for the trial. Bring all issues up front with the judge and make the prosecution work. Challenge all issues. The prosecutors in Federal Court may not be used to people challenging the case. They may show up unprepared.
File motions to challenge the Stop, the Arrest, the validity of the Breath Test, and any thing else that can be brought before the judge. In Federal Court, the motion is simple, concise, and has no argument. All argument and briefing comes after the hearing and the evidence. This makes sense because sometimes you never know what the cop will say and you don't know what the evidence will be.
Request evidentiary hearings. Sometimes the witnesses get shipped off to military duty and are unavailable for hearings. These hearings are your trial. The judge who hears the hearing, will hear the trial. If the judge is convinced of your argument prior to trial, you won't be wasting his time doing a trial when he has heard all the facts.
Judge's in Utah are tough and conservative, but smart and reason well. They support their findings with reasoning and caution. Write a brief better than the prosecution and and support it with documentation and with law. Attack the prosecution's brief carefully and methodically.

The man's case was dismissed because of all of the above. We filed motions to challenge the arrest and the breath test. An evidentiary hearing was held. The officer's did not conduct the field sobriety tests according to the standards. The validity was compromised. The officers could not tell the court how they insured the breath test was accurate by checking the man's mouth and waiting 15 minutes before giving the test. Cheers to this man. He almost lost his job, his career, and everything else that rolls into having a Federal DUI on the record.

Utah DUI Cops' Eye Test (HGN)...Is it Valid?

Glen Neeley — Fri, 27 Nov 2009 11:08:19 -0700

The Horizontal Gaze Nystagmus Test is a field test that officers across the nation, including Utah, use to determine whether a person is impaired. Is the test valid? The officer is not an opthamalogist and uses no scientific equipment to check a person's eyes.

He is not trained by anyone who has scientific training with the eyes. On a good day, the National Highway Traffic Safety Administration studies say this test is at least 77% accurate at determining whether a person is above a .10 (now claim it is effective at .08). A recent study that was published by the New Jersey Neuroscience Institute indicate that too many people have a natural nystagmus (involuntary bouncing/twitching of the eye). Here are the highlights:

**GEN=Gaze Evoked Nystagmus

A significant number of normal subjects have physiologic GEN at gaze angles as small as 10°.
Studies suggest that it is present in over 50% of the normal population and is more common in fatigued subjects.
Despite the wide range of conditions other than alcohol toxicity which can cause GEN and even though the test and formulas are
under extreme scrutiny, it is currently accepted by courts as evidence equal to chemical testing.
At 10° and 20° respectively, 21 % and 34% of the subjects demonstrated physiologic GEN.
We found an unexpectedly high frequency of GEN at 10° (21 %) and 20° (34%),which was similar at all ages.
The current minimum gaze angle of appearance of nystagmus at which the person "passes" is 45°. Not only does our study show that there is a significant amount of nystagmus occurring at
smaller gaze angles, but our maximum angle on extreme lateral gaze averaged 42.7°; which was much less than the minimum amount required to "pass the test." The majority of our subjects (93%) would fail this test out in the field.

If an officer conducts a field test on anyone, regardless of alcohol consumption, there is a good chance he will see nystagmus. Should the officer be allowed to testify that he saw bouncing eyeballs and therefore, the citizen accused was impaired? Absolutely not! The only person I want looking at my eyes is a trained eye doctor that is not looking to take me to jail. There are too many variables when this test is given by an officer on the street. The test is just too unreliable. The link below is the study itself.

www.utahduilawblog.com/uploads/file/PHYSIOLOGIC GEN OCCURS AT SMALL ANGLES BY WHYTE 2009.pdf

Top Criminal Law Blog

Glen Neeley — Mon, 23 Nov 2009 17:05:48 -0700

Attorney.org recognized Utah DUI Attorney Law Blog (www.utahduilawblog.com) as one of the top criminal law blogs on the net. The ranking seems to be alphabetized, rather than a rank of the best to worse. The link is http://www.attorney.org/criminal-law.html.

Attorney.org seems like a site that reports on current legal issues, items in the news, and seems to help people find competent lawyers.

The site does not just focus on criminal law, but seems to focus on many areas of law including malpractice, criminal law, divorce, civil, bankruptcy, tax, and many more areas. It seems to be a good place to start.

What happens when an Officer Hides Evidence, and Gets caught in a Utah DUI?

Glen Neeley — Wed, 04 Nov 2009 18:51:20 -0700

I was asked by a client two years ago to take over his case. He had another lawyer; he pled guilty and was on the verge of being sentenced. I agreed to represent this man and filed a motion to withdraw his guilty plea before he was sentenced. The judge allowed the plea to be withdrawn. The man’s case just did not sit right. The man claimed he did not have anything to drink that day and gave me specific details of what he did that day. He was pulled over, arrested, and charged with DUI. Here’s the thing. The man did not trust the breath test, so he begged for the officers to give him a blood test. The officers refused and said take my breath test. The breath test came back so high that it was unbelievable to the man. Again, he asked for a blood test. Again, he was denied. He was booked into jail.

The officer wrote a report that described a drunk. It was horrible. The officer was asked to produce a video, but he testified at various hearings that his camera was not working. Things did not match and the case did not smell right. So we have a jury trial in the justice court and the man is convicted. He is sentenced and we appeal to the District Court. We are not going to give up. We have a hearing on whether the officer had a right to arrest this man.

Here is the kicker. After six suppression motions and hearings on those motions, after a jury trial, and after an appeal, this officer walks into court with a video! The video is played in Court for the judge. The video contradicts the officer’s testimony and report. This man didn’t look drunk. He looked aged and a little uncoordinated doing the tests in his sandals. The real kicker is that the officer was not truthful with the court. He told us there was no video, but in fact, he never looked. Then he thought the video would help him, so he brings it to court. It contradicted everything the officer testified to prior.

A motion was then filed under a case called Brady v. Maryland and Utah cases that stand for the proposition that if the government hides evidence then there is a sanction. The government shall not cheat.

The District Court Judge took this issue and studied it. It is a big sanction to the government to dismiss a case. The judge considered this case for about two months. Today, a well thought out ruling came in the mail ending with “CASE DISMISSED WITH PREJUDICE.”

Never, ever, give up!

Can an Officer Pull Me Over for No Reason?

Glen Neeley — Mon, 02 Nov 2009 12:10:56 -0700

I recently represented a lady on her second accusation of a DUI. The first accusation she plead guilty. I appealed it for her because there was no evidence that this woman was impaired to any degree. The officer arrested her because she went through a red/yellow light and smelled alcohol on her. That was it. Case was reduced to red light violation. This second accusation was interesting. The officers get a dispatch call that two people are arguing in her front yard. The police show up and see a man yell something at a woman. The woman yells something back. Officers could not identify what the words were. The woman started her car and drove away. The police chased her down and pulled her over.

Here is where the problem began. Why did the officer's have a reason to pull her over? Yelling is not a crime. The officers have a right to investigate but do not have a right to stop and seize a person without a reasonable suspicion that a crime has occurred. If a report of an argument was the only reason to pull someone over, then every attorney in town should be seized--if that was against the law.

We took our case to the judge to ask for a dismissal based on the fact that there was no reason for the officer's to pull the woman over.

A hearing was held and the officers could not describe any criminal conduct. The officers could not describe or articulate any fact that led them to believe that the woman committed a crime. In fact, while the officer's followed her in her car, they could not describe any traffic violation. The judge dismissed the case.

An officer has to have a reason to pull a citizen over. The officer must be able to articulate facts that lead them to believe that a crime was committed or about to be committed and that the person did it. It can be something very simple like a tail light out or running a stop sign.

Points to remember when pulled over:

don't be afraid to question the officer why you were pulled over.
don't be afraid to ask to see the radar reading. (officer does not have to show, but it is good to ask)
don't be afraid to exercise your right to remain silent. (just identifying information to be given)
don't be afraid to ask for a lawyer.
don't be afraid to take your case to a judge for his opinion.
Always be courteous.

Field Sobriety Tests show bad balance, but Not impaired

Glen Neeley — Fri, 02 Oct 2009 10:19:24 -0700

A man by the name of Callis called me the other day. He was upset at a Utah Highway Patrol Trooper, Trooper Lisa Steed. He wanted to talk with me, so I met with him to find out what his complaint was. His case was over and dismissed, but the lasting affect it had on his life remains. He was falsely arrested by an officer that jumped to too many conclusions. This is how his case went down.

Callis was pulled over because he was weaving. The police report is very descriptive of a horrible driving pattern. Oddly enough, the video does not show such a driving pattern. I admit, the driving pattern showed some drifting side to side just like a person does when they are tired. Callis told Trooper Steed that he was tired. Trooper Steed makes a descriptive list of the following clues:

slow reaction time, seemed tired
slow and slurred speech
swayed while standing
constricted pupils, droopy eyes, very slow movements.
No clues on the Horizontal Gaze Nystagmus
On the Walk and Turn Test: couldn't keep balance, raised arms, missed heel to toe, stopped, improper turn, off line = 6/8 clues.
One Leg Stand Test: Swayed, raised arms, and foot down = 3/4 clues.

At this point, Callis was arrested. The interesting part about the field sobriety tests is that the Trooper violates all of the UHP policy and takes Callis off the video so no one can see what she did or what Callis did. It appears that she has done this on multiple cases.

Trooper Steed asked Callis to take a blood test. Callis says "yeah". He voluntarily consents to another officer, a deputy, to come in, stick his arm with a needle, and draw his blood. Callis asks Trooper Steed "can we do it asap, I will do it."

Trooper Steed takes the blood vials and has them tested at the Utah Toxicology Lab. She specifically asks the toxicology lab to test for two specific drugs along with their normal drug panel.

NO PRESCRIPTION DRUGS IDENTIFIED IN THE BLOOD.

NO ILLEGAL DRUGS IDENTIFIED IN THE BLOOD.

NO ALCOHOL IDENTIFIED IN THE BLOOD.

So here is an innocent man that has bad balance, maybe a little different in his speech, and is slow in his movements, and the police jump to the conclusion that he is impaired by drugs or alcohol. So one has to ask, "why are we not tested on our balance when we are given a driver's license? Why are we not given a speech test, a walk the line test, a one leg stand test?" Many people do not have the ability, the physical ability, to do these tests.

I had the chance to ask the officer about this. She stated that the lab did not test for the right drugs. She will not admit to a mistake, yet she never asked that it be retested. She specifically asked them to test for certain drugs.

Callis's license was suspended for 90 days, because of the officer's opinion. The decision was eventually overturned. Callis had to hire an attorney, make court appearances, and deal with the stress of being accused by the government over this officer's opinion. It's been a couple of years since this happened. Callis still lives with the pain of the whole experience.

Callis filed a letter of complaint with the Utah Highway Patrol and never heard anything back from them. He was sad that he opened his newspaper one day in 2007 and saw that this Trooper was not being reprimanded for her conduct, but was being praised and given awards for nabbing hundreds of what she perceives as drunk drivers.

Callis authorized me to use his name and his story. He indicated that he wanted to warn other people. His trust in the police has been severely damaged. A person is not required to do any field sobriety tests. They are designed to make a person fail, even if the person has taken no substances. You will never convince an officer that you are not impaired by doing the field sobriety tests. You are just giving him evidence to use against you. There is no consequence to your driving privileges for not participating in the officer's exercises. You can refuse. A polite "not without my lawyer" or "no thank you" will suffice. There are consequences of losing your license if you refuse to take the intoxilyzer or chemical test after the officer has read you an admonition regarding the consequences of taking the chemical test.

Having Good Breath is a Crime In Utah!

Glen Neeley — Mon, 14 Sep 2009 19:59:53 -0700

I was asked the other day what the consequences are of a minor in possession/consumption of alcohol. Interesting question with the new laws in effect now. Lets say you were never in a car, you are 18 years old, and you rinsed our mouth out with Listerine. An officer comes up to you and says I smell alcohol on you, please blow into my little breath test machine. You do so. Wow, you just registered a .02 with your good breath. Now what?

Pursuant to Utah Code 32a-12-209 you have just committed a crime. The code makes it a crime for a minor (under 21) to have any measurable or detectable amount of alcohol in your body. The harshest consequence that is now mandatory, even though you were not driving or even near a car, is that you will lose your license for one year.

Here is the exact language from the statute.

32A-12-209. Unlawful purchase, possession, consumption by minors -- Measurable amounts in body.
(1) Unless specifically authorized by this title, it is unlawful for a minor to:
(a) purchase an alcoholic beverage or product;
(b) attempt to purchase an alcoholic beverage or product;
(c) solicit another person to purchase an alcoholic beverage or product;
(d) possess an alcoholic beverage or product;
(e) consume an alcoholic beverage or product; or
(f) have measurable blood, breath, or urine alcohol concentration in the minor's body.
...(4) If a minor is found by a court to have violated this section and the violation is the minor's second or subsequent violation of this section, the court:
(a) shall order the minor to participate in an educational series as defined in Section 41-6a-501; and
(b) may order the minor to participate in a screening as defined in Section 41-6a-501.
(5) (a) When a minor who is at least 18 years old, but younger than 21 years old, is found by a court to have violated this section, except as provided in Section 32A-12-223, the court hearing the case shall suspend the minor's driving privileges under Section 53-3-219. (the division shall: (A) impose a suspension for a period of one year;)

The Innocent Accused

Glen Neeley — Mon, 31 Aug 2009 08:22:52 -0700

I saw this story in the Salt Lake Tribune the other day. The man caused an accident that killed another man. It was an "accident." A so called "expert cop trained to spot impaired drivers" accused this man of being under the influence of a central nervous system depressant. The man was jailed for 3 months on felony charges, automobile homicide. The problem is that the blood was tested several times with nothing found in his system. I can't imagine all that he has lost in three months. Contrary to witnesses' opinion, the "expert" officer formed the opinion that this man was impaired because he talked slow and was stumbling around. He had just been in a horrible accident.

After three months in jail, felony charges dismissed against Salt Lake man
Gabriel Idowu » Hit and killed man in wheelchair in WVC accident

By Steve Gehrke

The Salt Lake Tribune

Salt Lake Tribune
Updated:

For the rest of his life, Gabi Idowu says he will wrestle with a haunting memory: knowing he careened off a West Valley road and killed Kenneth Christensen -- a 76-year-old grandfather, father and brother.

But for now the 24-year-old college student can reclaim his jobs, return to school and begin paying back debts that piled up as he spent three months in jail. Prosecutors last Friday dismissed a felony charge accusing him of automobile homicide for driving under the influence of a depressant during the May 27 accident along West Valley's 3500 South.

A spokeswoman for the District Attorney's Office said the charge was based on the word of an expert officer trained to spot impaired drivers. But blood tests -- and retests -- from Utah and out-of-state labs came back negative.

Idowu said on Wednesday his new freedom is bittersweet.

"Someone died. That is my punishment," he said. "It hurts to know I affected this family's lives in such a drastic way, and anything I could do to alleviate their pain, I would do."

Christensen's daughter, Clover Daniels, is upset at prosecutors for letting Idowu off. She said he is a killer who doesn't deserve her forgiveness.

"There is no forgiveness in us at all. There never will be. What he did was wrong," Daniels said. "And him getting a slap on the wrist is a slap in our faces."

Daniels isn't the only one upset with how the case has been handled. Sitting in jail for nearly 90 days left Idowu frustrated with police, who acknowledge they don't often ask prosecutors to file a DUI automobile homicide charge before toxicology results come back.

The request for charges, said West Valley Capt. Tom McLachlan, was based solely on an officer's observations: Idowu's eyes were bloodshot and he was stumbling.

Idowu's friends told prosecutors he normally speaks slowly and is unsteady on his feet, said District Attorney's Office spokeswoman Alicia Cook. And accident witnesses told a private investigator that Idowu simply appeared stunned from the crash and was crying a lot.

Officers never investigated Idowu's description of a second car, which he said sped alongside him and cut him off as he moved to make a left turn, causing him to swerve off the road and strike Christensen, who was in his wheelchair on the sidewalk near a bus stop. Police allege Idowu simply didn't check his blind spot.

Police sent Idowu's blood for a second test because of the severity of the accident, McLachlan said.

"It's not that we're going after this guy, because we're not. But where it involves a fatality, you try to leave no investigative stone unturned," McLachlan said. "He obviously was involved in a very serious accident, and on the face of it, his actions were the cause of it. We're just trying to get justice served -- whatever that may be."

Ultimately, Idowu said he knows there are "good cops" but he believes his case was "handled with prejudice." Idowu is a Nigerian citizen who immigrated to the U.S. 10 years ago.

When he was sent to jail, Idowu didn't eat for a week and didn't speak to anyone about the accident for a month. Idowu said he eventually turned to God and "accepted that whatever happens will happen."

"I decided I would accept any fate, but at the same time I would not go down without a fight. I would not plead guilty to bogus charges," Idowu said, adding that he didn't want the charges against him to taint the public's views of all his fellow Nigerians.

Idowu now is piecing his life back together.

But with her father dead, Daniels noted her family won't get the same opportunity.

"He's not there to say I love you, we'll never feel his arms and we're barely getting by without him," Daniels said, adding that she's struggling as a single mother of two girls, 9 and 11, to afford her own house payments and keep her mom in a rest home. "He will never see his granddaughters grow up and get married and have a family of their own."

Said Idowu: "I ask them to forgive me. And even if they choose not to, I would understand."
What's next:

Though his felony charges were dismissed in West Valley Justice Court, Gabi Idowu now faces a class C misdemeanor charge for failure to signal and a class B misdemeanor charge for failure to maintain control of his vehicle.

Things are not always Black and White in Criminal Law

Glen Neeley — Fri, 28 Aug 2009 22:10:52 -0700

This women is being charged with multiple first degree felony rape charges. Today was her preliminary hearing. My partner, Rich Gallegos, is defending her. He asked me to sit with him at the defense table for support and for a second pair of eyes. He was masterful. The headlines for months read "Teacher had sex with her student." Rich showed how things are not so black and white. He was able to show how this kid was very adult in his conduct and groomed not one, but two older women into inappropriate relationships. Rich showed how this kid instigated the relationship and pursued this women. The whole case was turned around once Rich was able to cross examine the witnesses. Even the judge seemed hesitant to bind the women over for trial.

Assumed Guilt by Association by Salt Lake City Police; DUI Dismissed

Glen Neeley — Wed, 26 Aug 2009 16:42:11 -0700

My client goes to a man's residence to look at a car that the man has for sale. Client briefly looks at the car and prepares to leave. He gets in his own car. He starts the car. Two cops in an unmarked police car rush up with red and blue lights on. Cops take the client out of the car with guns drawn in what is called a felony stop. "I was just looking at a car for sale", client says. Cops make the determination that client is DUI. Cops take the client to the police station and give him a breath test. The result is .04. Oops cops screwed up. Cops find another law to charge client with, "not a drop of alcohol DUI" (alcohol restricted driver).

We get the police report and it says "Mr. Client came out of a residence of a parolee, and this is a pattern of drug activity." That was it. WHAT?!!!

You go look at a car that is for sale and don't know anything about the man who is selling it. You are next being arrested because in the cop's opinion, this was a pattern of drug activity. You have to be kidding me.

Needless to say, we filed a motion to suppress in the Salt Lake City Justice Court. Cops do not show up for the evidence hearing. I figure that the cops do not want to answer questions about why they did what they did. The judge dismisses the case. The prosecution refiles the case. We file the same motions and are ready for battle. Today, we go into Court for the evidence hearing. Prosecution dismisses the case and no police are there to be questioned.

This was a case about being arrested for whom you associate with. Looking at a car in these officer's mind is a pattern of drug activity. My poor guy to deal with all the stress of the government accusing him. Finally, he has relief. But still, he had to hire a lawyer, take time off for court, show up to hearings and face the reality that even innocent people can be convicted.

Utah Crime Lab and Budget Cuts

Glen Neeley — Mon, 17 Aug 2009 14:10:53 -0700

The Utah State Crime Lab analyzes all the DUI cases that involve blood draws. Recently, in the Salt Lake Tribune, there was an article stating that budget cuts may cause cutting lab staff. If that happens, the lab people in the article say that this could cause turnaround time on blood sample results to slow way down. Here is the problem. A person is entitled to a Driver's license hearing within 29 days of arrest. If the blood result is not provided within 29 days to the driver's license hearing officer, there is very little evidence to suspend a person's driver's license. This would benefit the driver, and has done so in the past on cases where the blood results were not ready in time for the hearing.

The article states:

"That seems to be true throughout the state lab, where 15 to 20 scientists analyze about 15,000 items a year in thousands of cases. Now staff are poised to see how a 15 percent budget cut, which took effect July 1, could lengthen turnaround time. The lab, the main section of which is housed in Salt Lake City with extensions in Ogden and Cedar City, had to close its Price branch and cut three positions statewide.
Lab Director Jay Henry says he's hoping to get federal funds that would help patch holes at the lab, one of only two state-run labs nationwide accredited under international standards that require regular audits and a dedicated quality assurance manager."

New Utah DUI Laws: Forfeiture of Vehicle

Glen Neeley — Fri, 14 Aug 2009 18:26:14 -0700

The new laws now allow seizure and forfeiture of your car. If you have been convicted of certain crimes, the government can take ownership of your car away. If you are driving on a suspended license, and your license was suspended because of a DUI or DUI Metabolite, then the government can take your vehicle away and never give it back. The following outlines the new law.

Forfeiture of Car
41-6a-527

(4) A motor vehicle is subject to criminal or civil forfeiture under the procedures and substantive protections established in Title 24, Chapter 1, Utah Uniform Forfeiture Procedures Act, upon a finding by the court that:

(a) the motor vehicle was used in a violation of Section 41-6a-502, 41-6a-517, a local ordinance which complies with the requirements of Subsection 41-6a-510(1), Subsection 58-37-8(2)(g), or Section 76-5-207;

(b) the operator of the vehicle has previously been convicted of a violation committed after May 12, 2009, of:
(i) a felony driving under the influence violation under Section 41-6a-502;
(ii) a felony violation of Subsection 58-37-8(2)(g); or
(iii) automobile homicide under Section 76-5-207;
(c) the operator of the vehicle was driving on a denied, suspended, revoked, or disqualified license; and
(d) (i) the denial, suspension, revocation, or disqualification under Subsection (4)(c) was imposed because of a violation of:
   (A) Section 41-6a-502;
   (B) Section 41-6a-517;
   (C) a local ordinance which complies with the requirements of Subsection 41-6a-510(1);
   (D) Section 41-6a-520;
   (E) Subsection 58-37-8(2)(g);
   (F) Section 76-5-207; or
   (G) a criminal prohibition that the person was charged with violating as a result of a plea bargain after having been originally charged with violating one or more of the sections or ordinances described in Subsections (4)(d)(i)(A) through (F); or
(ii) (A) the denial, suspension, revocation, or disqualification described in Subsection (4)(c) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension, revocation, or disqualification; and
(B) the original denial, suspension, revocation, or disqualification was imposed because of a violation described in Subsection (4)(d)(i)(A) through (G).

New Utah DUI Laws: Work / School Permit (NOT!)

Glen Neeley — Thu, 13 Aug 2009 18:11:47 -0700

The most common question I get asked is "Can I get a permit to drive to and from work while my license is suspended?" My answer used to be unequivocally no! My answer has not changed. This year, a new law was put in the code to allow a permit for school or work. However, to qualify for the permit, it is pretty much impossible. This is what the code says:

Limited Driving Permit
53-3-220(4)

if first suspension extended for 3 years or more
Doctor says no knowledge of drug use unless prescribed in last 3 years
no physical or mental problems
1 year prior,

No violations
No Arrests
No accidents
Show undue hardship
Granted only once
School or employment
Doesn’t apply to CDL

(4) (a) The division may extend to a person the limited privilege of driving a motor vehicle to and from the person's place of employment or within other specified limits on recommendation of the judge in any case where a person is convicted of any of the offenses referred to in Subsections (1) and (2) except:
(i) automobile homicide under Subsection (1)(a)(i);
(ii) those offenses referred to in Subsections (1)(a)(ii), (a)(iii), (a)(xi), (a)(xii), (a)(xiii), (1)(b), and (1)(c); and
(iii) those offenses referred to in Subsection (2) when the original denial, suspension, revocation, or disqualification was imposed because of a violation of Section 41-6a-502, 41-6a-517, a local ordinance which complies with the requirements of Subsection 41-6a-510(1), Section 41-6a-520, or Section 76-5-207, or a criminal prohibition that the person was charged with violating as a result of a plea bargain after having been originally charged with violating one or more of these sections or ordinances, unless:

(A) the person has had the period of the first denial, suspension, revocation, or disqualification extended for a period of at least three years;
(B) the division receives written verification from the person's primary care physician that:
(I) to the physician's knowledge the person has not used any narcotic drug or other controlled substance except as prescribed by a licensed medical practitioner within the last three years; and (II) the physician is not aware of any physical, emotional, or mental impairment that would affect the person's ability to operate a motor vehicle safely; and
(C) for a period of one year prior to the date of the request for a limited driving privilege:

(I) the person has not been convicted of a violation of any motor vehicle law in which the person was involved as the operator of the vehicle;
(II) the division has not received a report of an arrest for a violation of any motor vehicle law in which the person was involved as the operator of the vehicle; and
(III) the division has not received a report of an accident in which the person was involved as an operator of a vehicle.
(b) (i) Except as provided in Subsection (4)(b)(ii), the discretionary privilege authorized in this Subsection (4):
(A) is limited to when undue hardship would result from a failure to grant the privilege; and
(B) may be granted only once to any person during any single period of denial, suspension, revocation, or disqualification, or extension of that denial, suspension, revocation, or disqualification.
(ii) The discretionary privilege authorized in Subsection (4)(a)(iii):
(A) is limited to when the limited privilege is necessary for the person to commute to school or work; and
(B) may be granted only once to any person during any single period of denial, suspension, revocation, or disqualification, or extension of that denial, suspension, revocation, or disqualification.
(c) A limited CDL may not be granted to a person disqualified under Part 4, Uniform Commercial Driver License Act, or whose license has been revoked, suspended, cancelled, or denied under this chapter.

New Utah DUI Laws: Longer Driver's License Suspensions

Glen Neeley — Wed, 12 Aug 2009 17:55:45 -0700

If a person gets arrested for DUI after July 1, 2009, then the driver's license suspension period has been extended. Basically, a first time offender that does not refuse to take a breath test gets a 120 day suspension. (Used to be 90 days). A person with a prior DUI is now Two Years. A second offense that is a refusal is now Three Years. The problem is people don't stop driving. The effect of these consequences is to put unlicensed and uninsured drivers on the road. The following is an outline of the new laws that went into effect July 2009.

New Driver's License Suspensions

Refusal
41-6a-521 Revocation Hearing for Refusal

18 months first refusal (no change

36 Months (3 years) for priors (does not matter if priors were refusals) looks back 10 years from date of arrest or conviction

Refusal Suspension for--Under 21

18 months or until 21, whichever is longer
36 months or until 21, whichever is longer if:
prior license sanction in 10 years for (metabolite, refusal, alc restricted driver, DUI, motorboat alc violation, conditional license violation)

Non Refusal Suspensions-over 21
120 days (4 months) extended 30 days
2 years if there is a prior within 10 years

Non Refusal Suspension--under 21
Until 21 or 120 days, whichever is longer
Until 21 or 2 years, whichever is longer if prior within 10 years
Deny application for learner’s permit until 21 or 120 days whichever is longer
or until 21 or two years if priors within 10 years

Utah DUI Lawyer: Hiring a General Practitioner to do Heart Surgery

Glen Neeley — Tue, 11 Aug 2009 09:49:00 -0700

"What makes you different from other lawyers? Why should I hire you?" These are some of the most common questions I get from a citizen that has just been accused of a DUI. The simple answer... it is the difference between hiring a general practitioner doctor and a heart surgeon to do the surgery on a person's heart. The heart surgeon cannot guarantee that he will succeed, but a patient will certainly increase the chances of having the best care and knowledge available for the surgery.

Justin McShane, one of the top rated attorneys in the nation wrote about this exact subject. I have known Justin for a couple of years now. He is a specialist in the practice of DUI Defense in Pennsylvania. He writes:

"If you have a minor issue, go see a general practitioner. If you have a serious legal issue like a DUI you need to see a specialist. We have discussed at length the various consequences stemming from a DUI conviction. Not only could you be facing, jail time and suspension of your driving license if convicted, you could also lose your job, your occupational license, insurance, and face other stiff financial liabilities. For most of the clients we represent, the DUI charges they were facing, were the most serious legal issue they had or will face in their entire lives. Many of them didn't realize how serious the consequences were until they sat down with us for a consultation.

So just as you would got to a heart specialist when facing serious heart problems, you should find a qualified DUI specialist when facing a serious legal issue like a DUI charge. At that point, an attorney who "also deals with DUI" just doesn't cut it. You need to see a highly trained, qualified lawyer who specializes in DUI and knows about all of the complex legal, procedural, administrative, medical, and scientific issues that are involved in these cases. "

I agree with Justin completely. I get questions for divorce, and I refer the questions to a specialist in family law. If I get a question for estate planning, I refer those questions to an estate planning attorney. The list goes on. A lawyer with a license to practice law does not mean the lawyer is competent to practice all law. A lawyer that specializes in a particular area is the lawyer that serves the client with the most care and knowledge.

New Utah DUI Laws: Ignition Interlock

Glen Neeley — Mon, 10 Aug 2009 15:07:07 -0700

Effective July 2, 2009, many new laws came into effect. Now, anyone convicted of a DUI, whether it be a first offense or a subsequent offense, will be required to have an ignition interlock device placed on their car. The ignition interlock business is going to be making a lot of money on this deal. Lawyers will need to be fighting DUI cases. There is no reason to plead people guilty with these consequences. The device is expensive, it has problems being accurate, and it interferes with life.

Here is the outline of what is required:

Ignition Interlock
41-6A-518.2

The Adult

18 Months for first time offense
3 years for Second offense (Includes Driving While Impaired or Alcohol Related Reckless)
Driving without Ignition interlock (3 year requirement)
Refusal (3 years)
Felony Conviction (6 years)
Automobile Homicide (10 years)
Ignition Interlock does not include:Person’s conviction is not a 41-6a-517 (metabolite DUI) ANDall of the person’s prior convictions are convictions under 517
Plea and Abeyance: is a conviction

When can you get out of an ignition interlock???

Vehicle owned by employer
written notice to employer of interlock requirement
On person or vehicle, proof of given notice to employer and
operation was in scope of employment
Doesn’t apply to personal use or self employed

If you are a Minor:

3 years if under age 21

Utah Attorney, Glen Neeley, becomes 40th Board Certified DUI Defense Lawyer in the Nation

Glen Neeley — Wed, 22 Jul 2009 15:31:36 -0700

I attended Harvard Law School this past week. The National College of DUI Defense puts on an intense Summer Session seminar dealing with technical issues in DUI defense. I received the honor of becoming the 40^th Board Certified DUI Defense Lawyer in the Nation. Why is this important to people charged with a DUI? There are a lot of great competent lawyers out there. However, to become named the best of the best, the lawyer must demonstrate competence in every aspect of defending a person charged with DUI. Board Certification was a difficult and grueling process. A half day exam is given. Before the exam, the lawyer must first qualify. The lawyer must have done 20 Trials to verdict within a three year period. The lawyer must have done 40 contested hearings within a three year period. The lawyer must demonstrate good standing with the bar association of his state. The lawyer must have letters of references from judges and other lawyers. Once the lawyer is qualified, the lawyer is asked to present an appellate brief on issues as determined by the examiner. Then the lawyer must argue that brief at the examination time and defend it before a panel of judges. The lawyer then must pass the written exam.

Board Certification is important when hiring a lawyer. If the day comes when my loved one or me is diagnosed with a serious illness, I want the doctor that is board certified. I want the best doctor I can hire. I feel that people who hire a lawyer should view it the same way.

Davis County Utah DUI, "The Scarlet D"

Glen Neeley — Fri, 19 Jun 2009 06:12:31 -0700

I received a phone call yesterday from Jesse Fruhwirth, who works for the Standard Examiner newspaper. I was in the middle of arguing a case before the District Court regarding the illegal search of my client. "What do you think about the DUI registry in Davis County?", he said. Did I hear him right? They are trying to bring the Scarlet letter to a person convicted of a DUI? See, if a person is a registered sex offender, that is put in the public on a registry and on the internet for a reason. It is perceived that it is not punishment, but public safety. Before you buy a house in a neighborhood, and you have children, you may want to know if there is a child sex offender living next door. Does a DUI registry serve the same purpose? Does the public safety of knowing your neighbor really outweigh the person's privacy issues? I mean would you really care if the guy next door has had DUI's so you can stay away from him? The article was printed this morning. The highlights are:

This is punishment not public perception
A registry would hold people back from becoming productive members of society
DUI is now being compared to a Child Sex Offense.

People should be punished for their transgressions. However, we want people to become productive members of society. For a person who has lost their job over a mistake needs to find a new job. This would just make things harder.

Group wants DUI registry
Proposal draws mixed reviews from Davis lawmakers
By JESSE FRUHWIRTH
Standard-Examiner Davis Bureau jfruhwirth@standard.net
LAYTON — Davis County lawmakers heard this week about a preliminary proposal to post information on the Internet about residents who have been twice convicted of driving under the influence of drugs or alcohol.
The DUI offender Web site was proposed by a new group, Davis Helps, to the Davis Council of Governments Wednesday night. Brandon Hatch, prevention coordinator for Davis Behavioral Health, gave a presentation regarding Davis Helps’ plans and said the Web site could be launched as soon as this fall.
Hatch told COG members Wednesday there were 1,700 DUI arrests in Davis County in 2008.
Thursday he deferred questions to Brent Wilhite, a public relations professional and member of the Davis Helps coalition. Wilhite declined to discuss the group, its members, or its mission besides saying, “It’s a coalition of health, education and law enforcement in Davis County.”
Wilhite said his group is “not really ready to talk about” the DUI registry, despite talking about it publicly Wednesday in front of Davis County’s biggest coalition of elected leaders.
“We don’t have enough information on what that would entail,” he said of the proposed Web site. “It’s very conceptual right now. … It’s just kind of gauging the public pulse on that right now.”
Wilhite and Hatch said they would be ready to discuss the proposal at greater length on Thursday.
DUI defense attorneys Glen Neeley, of Ogden, and Jason Schatz, of Salt Lake City, each said such a Web site would serve no purpose other than humiliation. Both used the term “Scarlet Letter.”
Melinda Murchie, director of House of Hope Residential Treatment Center in Salt Lake City, said people with addictions rarely consider the consequences of their actions, so fear of appearing on a public registry won’t deter them from making dangerous choices.
Rep. Paul Ray, R-Clearfield, has sponsored various legislation over the years regarding Utah’s Sex and Kidnap Offender Registry. He knows as much as anyone about the history and legalities of registries such as the one proposed by Davis Helps.
His initial thought was that no legislation would be required for a local government to create a DUI registry. He said he’s aware of no debate or proposal by legislators to have a statewide DUI registry.
Ray said he’s very intrigued by the concept and would likely endorse the plan when he hears more details about it.
“As a parent, I would love to have that tool, because if my kids are going to a friend’s house, I can check the DUI registry and make sure that person is OK,” he said.
He disagreed that the registry would place an onerous stigma on the offenders who appear on the Web site, a complaint the sex offender registry has received often.
“DUIs are terrible. I lost a grandfather to DUI. I lost a lot of loved ones to DUI, but I believe the public perception is ‘this person has an alcohol problem, but otherwise he’s a pretty good guy,’” Ray said.
“With a sex offender, they look at a person as a deviant and think, ‘I’m not sure I trust him for much of anything.’”
Ray said the Web site could help employers who want to avoid unnecessary risks, but said employers probably would not concern themselves with the DUI registry unless they were hiring a driver.
“If this person isn’t driving a vehicle for the employer … I don’t know that a DUI registry would hurt their employment much,” he said.
Murchie said such a registry would serve to further stigmatize alcohol abuse. She envisioned a situation in which one child calls out to another child, “Your daddy’s an alcoholic” based on information available on a Web site. DUI records are publicly available already, but Murchie said making those records more accessible could embarrass people without modifying their behavior.
“I don’t think it would work as a deterrent for those people who are alcoholics or drug addicts. It’s not going to be a great way to stop them because they’re not using a lot of consequential thinking anyway,” she said. “For nonproblem drinkers, it would probably just embarrass them and add to the stigma of alcohol abuse. Clearly (driving under the influence) is alcohol abuse.”
Neeley said DUI offenders are ordered to seek treatment, but that current laws make recovery difficult. Utah’s law that allows offenders to get a need-based license to drive to work and treatment while their license is suspended is almost impossible to use. He said DUI offenders would have an even harder time gaining or maintaining employment if a group put their mug shot on a Web site.
“You’re going to put them up on a registry and a person goes to try to get a mediocre job or any job and someone can pull them up on the Internet, see your mug, and say ‘You’ve been twice convicted of a DUI. You won’t be working here.’”
Schatz also complained that such a Web site would fail to deter unsafe drivers and said not all DUIs are the same. Schatz estimates he has handled at least 700, but perhaps 1,000 DUI cases in the last five years and said many responsible people drive under the influence once or twice.
Someone who just left the dentist’s office and does not know how impaired they could become after taking their first narcotic painkiller like Lortab can be convicted of DUI, Schatz said.
“(DUI offenders) are not all people who chugged a 12-pack and drove down the road to hit somebody,” he said. “I think you’re going to see a lot of good, normal people whose reputations are damaged immensely without any real benefit from it.”
Neeley also disagreed that embarrassment could serve well as a form of punishment.
“Get these people help, don’t blast them all over the public, ‘Look at him. He’s a DUI offender.’ That doesn’t help the person or society. It hurts them.”