Utah DUI Procedures

By: Ryan Holdaway

Administrative License Suspension (ALS)

Generally a driver who is arrested and/or charged with a DUI is subject to an automatic suspension of his or her driver's license. This suspension is considered a civil remedy and is separate from any criminal charges that may be filed against the driver. An ALS is subject to its own rules and proceedings separate from those a DUI defendant will encounter in the criminal court system. This section is designed to help you understand how the ALS system works, what to expect, the possible defenses, and the consequences for failing to request one or losing your hearing.


The suspension can be the result of a refusal to take a breath test or provide a blood sample. It may also result from taking the breath test or providing a blood sample and having a BAC that is too high. The following section relates to the latter situation. Information concerning refusal to provide a breath sample or blood will be addressed later as well as implied consent issues.


Time Limitations

You only have ten days from the date you received the notice of suspension to request your hearing. This is a strict deadline and a failure to make a timely request will prohibit you from getting a hearing or preventing the suspension of your license--even if you are innocent of the charged offense. We have had cases where individuals were late making their request through no fault of their own and their requests were still denied. Getting your request for a hearing in on time is essential! This means if you are contemplating hiring an attorney you need to either get into see the attorney as quickly as possible following your arrest or charge or file your request for a hearing while you are looking for an attorney. If you wait, it will be too late.


The police are required to provide you with a notice of suspension if you are to be arrested or charged for a DUI. This notice must be delivered sent to you within 24 hours of your arrest. The notice may come as its own stand alone sheet or may be coupled with the citation form used to initiate the charges against you. The image on the previous page shows the notice as it appears attached to a citation form. The notice provides information on the type of DUI charge you are receiving, informs you of the ten day deadline for requesting a hearing, and informs you how to request a hearing.


Temporary Permit

The notice often also serves as a temporary driving permit. The temporary permit is only valid for 29 days from the date of the charge and notice. If you make a timely request for a hearing that hearing is supposed to be held within the 29 day period your temporary license is valid.


ALS Hearing Issues and Defenses

At an ALS hearing three issues will be covered: 1) the basis for the officer to believe you were driving under the influence; 2) your refusal to take a breath test or blood draw (if applicable); and 3) the test results (if applicable). These factors allow you to challenge the officer's reason for initiating a stop and/or the officer's basis for requiring you to provide a breath or blood sample. It also allows you to challenge the test results if the officer failed to perform the test correctly or the equipment was not operating correctly.


For example, the equipment used to take the breath sample must be one of the devices approved by the Utah Department of Safety. The officer giving the test must be qualified and certified to operate the testing equipment. Additionally, the tests must be done in compliance with standards set by the Utah Department of Safety. Other factors to consider include if the officer conducted a fifteen minute observation period prior to testing and checked the mouth for foreign objects. A failure of the officer to comply with any of these types of factors may invalidate the test results and your license should not be administratively suspended.


Consequences of Losing Hearing or Not Requesting a Hearing

Should you have a hearing and lose, your license will suspend your license. The length of the suspension depends on your age at the time of your arrest and charge and how many prior suspensions you have had.


- If you were older than 21 at the time of the arrest and this is your first suspension, your license will be suspended for 120 days.
- If you were 21 and had prior suspensions within the last ten years your license will be suspended for two years.
- If you were 19 and this is your first suspension your license will be suspended for six months.
- If you were 19 and have had prior suspensions in the last ten years your license will be suspended until you turn 21 years old or for a period of two years, whichever is longer.
- If you were under 19 at the time and this is your first suspension your license will be suspended for two years.
- If you were under 19 at the time and had prior suspension within the last ten years your license will be suspended until you turn 21 years old or for two years, whichever is longer.


License Resinstatement

Once your suspension period is completed you may seek to have your license reinstated. However, if your license has also been suspended by the court in your criminal case the timing of when you can reinstate your license may be affected. Nevertheless, when it is time to reinstate your license you should be prepared to pay some additional fees and costs to the License Division. The applicable fees are available at http://publicsafety.utah.gov/dld/fees.html and Utah Code Annotated § 53-3-105(23) and (24).


Refusal to Provide Breath or Blood Sample Upon Request

When you drive on Utah's roads you are considered to have consented to giving a sample of your breath, urine, blood, or "oral fluids" to determine your BAC level while operating a vehicle. If you are asked to provide such a sample and you refuse your license is subject to an administrative suspension just as if you had taken the test and failed. If your license is to be suspended for a refusal to provide a breath or blood sample you may be able to challenge the suspension by requesting a hearing.


Requesting a Hearing

You must request a hearing within ten calendar days of the notice of suspension and the request must be in writing. The notice of suspension will contain instructions on where the request for hearing should be sent and what information must be included. It is important to follow those instructions as a failure to do so may result in the License Division denying your request for a hearing.


ALS Hearing Issues and Defenses

Should you request a hearing you will only be able to address two issues: 1) the basis for the officer stopping you and requesting the sample; and 2) whether or not you actually refused to provide a sample. As to the first issue, you must either show the officer lacked a reasonable suspicion to stop you or lacked probable cause to request a sample for determining your BAC. These are Fourth Amendment issues and are also covered under the Article 1, Section 14 of the Utah Constitution.


The second issue is a factual one that looks at whether or not you refused to provide a sample. From our experience the most common circumstance where this arises is where a person is providing a breath sample but the officer believes the individual is attempting to defeat the breathalyzer. For instance the person may be pretending to blow, bighting the mouthpiece to restrict airflow, or repeatedly belches or vomits in their mouth. If the officer believes you are using such a technique, or something similar, he may consider your interference to be a form of refusal. Under such circumstances it will often be your word against the officer's as to whether or not you were interfering with the testing process.


Officer Selects Type of Test

You should note that you are not permitted to insist on a specific type of test. The type of test to be administered is up to the officer and the officer may request multiple types of tests. Even if you have already performed one test, should you refuse additional requests from the officer for more testing, that refusal can be used as a basis for suspending your license. In short, the implied consent law places you at the officer's mercy as any interference on your part can be considered a refusal and you will suffer severe penalties. However, other than blood draw situations, we have not seen many cases where an officer insists on repeated tests or multiple forms of tests without some need to do so.


Consequences of Losing Hearing or Not Requesting a Hearing

If you do not request a hearing, lose your hearing, or fail to attend your hearing the consequences can be quite severe. The penalties range depending on your age at the time of the refusal and your prior license history. The minimum suspension period is 18 months and can get as high as three years. The precise suspension times are contained in Utah Code Annotated § 46-6a-521(d).


License Reinstatement

Once your suspension period is completed you may seek to have your license reinstated. However, if your license has also been suspended by the court in your criminal case the timing of when you can reinstate your license may be affected. Nevertheless, when it is time to reinstate your license you should be prepared to pay some additional fees and costs to the License Division. The applicable fees are available at http://publicsafety.utah.gov/dld/fees.html and Utah Code Annotated § 53-3-105(23) and (24).


Implied Consent and Constitutional Issues

The implied consent law is under attack as many people, including us, believe it is unconstitutional. The forced or coerced seizure of bodily fluids and breath raise Fourth Amendment issues as well as concerns under Article 1, Section 14 of the Utah Constitution. We have a constitutional right to be free from search or seizure without a warrant, some exigent circumstances, or where we give knowing and voluntary consent. This right extends to our bodily fluids.


We are unaware of any other constitutionally protected right than can be waived through implied consent. Nevertheless, Utah has passed a law that dictates your act of driving on a Utah road is consent to provide samples of bodily fluids. Furthermore, that consent cannot be withdrawn. Such a law seems to fly in the face of two centuries of constitutional jurisprudence.


Fortunately, the implied consent law has been under attack in the federal courts. However, these challenges are typically limited to challenges of warrantless blood draws. This is likely because there really is not a way to get a forced breath test, so anytime an office compels testing it is done through blood draw. Due to the challenges and success in federal courts, Utah officers will almost always seek a warrant before initiating a blood draw.


Breathalyzer Procedures and Defenses

Under Utah’s implied consent law, an officer who suspects you of driving under the influence may request a sample of your breath, blood, urine, or “oral fluids.” The most common type of sample requested is breath through use of a breathalyzer machine such as the Intoxylizer 5000 or Intoxylizer 8000. These are the easiest samples to deal with, and since the Intoxylizer 8000 is a mobile unit, breath samples are also the easiest to obtain on site. This section is to help you understand what to expect when asked to give a breath sample, what you should and should not do, and the possible defenses you can raise. This section will not address any issues that may arise in your case prior to the breath sample portion (i.e. the purpose of the stop, sobriety tests, searches of the vehicle or person, etc.).


Foreign Objects in the Mouth and Observation Period

Once an officer has probable cause to believe you are operating a vehicle under the influence the officer may request a sample of your breath However, before the officer can make you blow he or she must perform a couple of basic tasks to help ensure the accuracy of the machine. First, the officer must check your mouth for any foreign objects such as gum or tobacco. If you have anything like that in your mouth you should be asked to remove it prior to testing. This requirement is for your benefit as the object in your mouth may be retaining some of the alcohol and when you blow it will skew your test in making it appear that your BAC is higher than it actually is.


Consequently, if the officer fails to check your mouth and have you remove any foreign object the resulting test may be invalid. However, you are cautioned against intentionally trying to keep something in your mouth in an effort to invalidate the tests as several negative consequences may occur. The first is the officer may learn you are trying to defeat the test and consider your attempts a refusal—in which case your license will automatically be suspended for a period of not less than 18 months. The second is that the object makes the machine think your BAC is higher than it actually is and now you have no way of proving that you had in object in your mouth at the time of the test. Remember, the object can only invalidate the test results if the court believes you actually had something in your mouth at the time. Therefore, it in your interest to make sure nothing remains in your mouth when you take the test.


The second step an officer must take is to place you under observation for at least fifteen minutes. It is not enough for the officer to simply wait fifteen minutes. The officer must be able to actually observe you during the fifteen minute period and the observation period must begin after your mouth has been checked for foreign objects.


The purpose of the observation period is to ensure no residual alcohol remains in your mouth. If you have recently belched, vomited, dry heaved, or had an object in your mouth, residual alcohol can build up and skew the test to show a higher BAC than what you actually have. If the officer sees that you have done one of the above things during the observation period the observation should restart. A failure of the officer to have a fifteen minute observation period, or to restart the period when necessary the resulting test may be invalid.


Again, you are cautioned against purposefully trying to interfere with the observation period as your actions may constitute a refusal to take the test, may result in a forced blood draw, or could make the machine read a higher BAC than you actually have. One thing you should do is be aware of the observation time and ensure the officer is being honest about how much time has passed.


Testing Procedures

In preparing for the test the officer will need to run a blank through the machine to ensure no residual alcohol is already in the machine. Following the blank the officer will have you blow into the machine. The machine will require a minimum amount of breath to pass through the tube before it can give an accurate reading. The minimum standard varies depending on the type of machine. If you do not provide enough air the machine should, but will not always, produce an error. It will, however, provide with the printout, the amount of air it received. If the amount of air received is below the minimum amount required the resulting BAC may be invalid.


Some people will try to defeat the machine by intentionally interfering with the amount of air they are breathing into the machine. They try this by fake blowing, biting the mouthpiece while blowing, placing their tongue in the way, or any other limitless creative ways people can come up with to restrict airflow. Doing so may reach the intended goal of invalidating the test but it may also result in the officer considering it a refusal and/or a forced blood draw. Attempting to manipulate the test results through restricting your airflow is not advised.


Following your breath sample the officer should run another blank through the machine. Once the last blank has been run through the machine should generate a printout that will contain your name, the officer’s name, the date and time, as well as specifics about the actual test - like the readings on the blanks and your BAC. This printout deserves close scrutiny later when you have a chance to meet with your attorney.


If the machine detects a BAC of .08 or higher you will be arrested and charged with a DUI. You are strongly advised to seek out an attorney as quickly as possible once you have been released. DUI charges invoke short timelines and requirements for you that must be completed quickly or severe consequences will take place even if you are innocent of the charge.


With an attorney you can consider possible defenses that may invalidate the test. Some of these defenses will look at the steps previously discussed here. Additional defenses will look at the qualifications of the officer administrating the test, the certification of the machine, and the maintenance of the machine.


Breathalyzer Machine Certification, Officer Certification, and Maintenance

A breathalyzer machine used in Utah must have been approved by the Utah Department of Safety. Even if the machine is one of the approved models it cannot be used for BAC tests until it has been tested and certified by a qualified technician. Once certified, the machine must be recertified at least once every 40 days. Records of the machine’s certification and recertification must be kept by the Department of Safety and are available for inspection through written request to the Department of Safety. They should also be available through standard discovery procedures in your criminal case.


In addition to the certification requirements of the machine itself the officer operating the machine must be certified. The officer’s certification is valid for three years after which he or she must be recertified. When requesting the officer’s records you will want to request the most recent certification as well as the certification prior to the most recent one. This is because the requirements for recertification and certification are different and if an officer lets his certification expire for more than one year he must go through certification instead of recertification. The records of the officer’s certification should be available through standard discovery in your criminal case.


Where the machine is not a qualified machine, was not properly certified and/or maintained, or the officer was not properly certified, the test results may be invalid. Much of this information will only be available through direct request to the Department of Safety or through discovery. You should consult with your attorney on obtaining this information and how it can be used in your defense.


What to do if Pulled Over

Remember that you have a Fifth Amendment right against self incrimination. While the officer may often rightfully and lawfully mandate you give your identifying information, license, registration, and proof of insurance, beyond that you are not obligated to give the officer any information. This includes any statements about whether you have been drinking, using drugs, or using prescription medication. You do not have to answer an officer's questions about whether you have been drinking or about how much you have had to drink.


Additionally, you do not have to agree to do field sobriety testing. Refusing to do so will likely lead to an arrest since the officer will want to make you submit to a breathalyzer. Nevertheless, as strange as it sounds, you may still be better off refusing to do the field sobriety tests if you are in fact under the influence. This is because you will likely fail the field sobriety tests anyway and have provided the officer with additional evidence to use against you later. Since the arrest was likely going to happen anyway, you might as well have at least deprived the officer of the evidence derived from the field sobriety tests.


Finally, while you may refuse to answer some questions and you may refuse to do the field sobriety tests you are required to submit to a blood, urine, or breath test if lawfully requested to do so by an officer (see refusal section above). Exercise caution in deciding whether to refuse a test as the consequences can be severe.


If your are arrested keep in mind your right to silence and exercise it. Once released contact an attorney immediately and retrieve your car from impound immediately. A failure to retrieve your car from impound immediately can lead to astronomical charges that quickly accumulate to a point where many people cannot pay them. At that time your car will be auctioned off. Whether you plan to fight the charges or not, whether the arrest or impound was just or not, you will only hurt yourself further by failing to quickly retrieve your car from impound.