391 P.3d 391
Utah Ct. App.2017Background
- Officer saw an ATV speeding on a snow-covered road with three riders: a 10-year-old in front, Cook in the middle, and an 18-year-old in the rear; Cook was holding a beer can while steering.
- Officer stopped the ATV; Cook smelled of alcohol, was belligerent and slurred speech; an open, half-consumed beer was found in the snow and another can in Cook’s pocket.
- At the jail Cook failed field sobriety tests and registered a .119 BAC on the breathalyzer (over the .08 legal limit).
- Cook was charged and convicted of DUI with a passenger under 16 (class A misdemeanor) after a bench trial and appealed.
- On appeal Cook argued (1) she was not in "actual physical control" because the child was driving, (2) the breath-test admission was improper due to an inadequate 15-minute observation, and (3) trial counsel was ineffective for not developing a stronger suppression motion.
Issues
| Issue | Cook's Argument | State's Argument | Held |
|---|---|---|---|
| Whether Cook was in "actual physical control" of the ATV | She lacked control because the child was driving | Cook had apparent ability and exercised directing influence (steering help, hands on bars) | Court: Cook had actual physical control under totality of circumstances; conviction affirmed |
| Admissibility of breath-test results (15-minute observation) | Observation period may have been invalid because officer used phone to start timer and breathalyzer to end it (possible desynchronization) | Machine starts its own 15-minute timer when operator enters info; officer observed >15 minutes and properly administered test | Court: Trial court did not abuse discretion; breath results admissible |
| Whether State had to prove BAC at time of driving | State required to prove BAC >= .08 at time of operation | State need only prove BAC >= .08 at time of subsequent chemical test | Court: Statute requires BAC >= .08 at time of chemical test, not necessarily at time of driving (Manwaring) |
| Ineffective assistance of counsel for not developing suppression motion | Counsel should have more fully developed 15-minute observation argument pretrial | A fuller motion would have been futile because admissibility requirements were met | Court: No ineffective assistance; failure to pursue a futile argument is not ineffective assistance |
Key Cases Cited
- Lake Philgas Service v. Valley Bank & Trust Co., 845 P.2d 951 (Utah Ct. App. 1993) (standard for viewing evidence on appeal from bench trial)
- State v. Vialpando, 89 P.3d 209 (Utah Ct. App. 2004) (requirements for admissibility of breathalyzer results, including 15-minute observation)
- State v. Barnhart, 850 P.2d 473 (Utah Ct. App. 1993) (actual physical control can exist without moving vehicle and may be shown by apparent ability to start or steer)
- State v. Bugger, 483 P.2d 442 (Utah 1971) (definition of "actual physical control" as bodily restraint or directing influence)
- State v. Manwaring, 268 P.3d 201 (Utah Ct. App. 2011) (statute requires BAC >= .08 at time of subsequent chemical test, not necessarily at time of driving)