State v. Higley, 463 P.3d 77

Background

Around midnight Higley was found slumped asleep in the driver’s seat of his running car, which was in neutral and protruding into an intersection; keys were in the ignition.
Officers woke him, asked about drugs/alcohol; he admitted a Xanax prescription; a portable breath test was negative for alcohol but blood later showed therapeutic-level alprazolam.
Officer-administered field sobriety tests: Higley failed two of three (walk-and-turn; one-leg stand), showed poor balance, delayed compliance, and leaned on a fence; officer testified FST failures can indicate impairment.
A Natural American Spirit cigarette box containing heroin was recovered from the center console; Higley sometimes said the car belonged to his mother and that the drugs were hers; at trial he suggested passengers might have spilled something but also said passengers left nothing in the car.
Charges included DUI (under the influence of a drug rendering one incapable of safe operation), possession of heroin, and possession of drug paraphernalia; jury convicted on all counts.
On appeal Higley argued (1) ineffective assistance for failing to move to arrest judgment on DUI insufficiency, (2) district court erred by denying a reckless-driving lesser-included instruction, and (3) trial counsel was ineffective re: possession counts (petitioning for a rule 23B remand to supplement the record regarding witness questioning and failing to call Higley’s mother).

Issues

Issue	Higley’s Argument	State’s Argument	Held
Whether counsel was ineffective for not moving to arrest judgment on DUI (insufficiency of evidence)	Higley: Evidence was insufficient—no erratic driving, breath test negative, Xanax at therapeutic level; counsel should have moved to arrest judgment	State: Evidence (location in intersection, asleep at wheel, failed FSTs, officer testimony, delayed compliance) provided ample basis; a motion would be futile	Court: Denied—motion would have been futile; counsel not ineffective under Strickland
Whether the court erred by refusing a reckless-driving lesser-included instruction to DUI	Higley: Reckless driving is a lesser traffic offense overlapping DUI elements given his drowsiness and inability to operate safely	State: Elements differ—DUI is strict liability re: ‘‘under the influence’’ and ‘‘incapable of safely operating,’’ while reckless driving requires mens rea (willful/wanton disregard)	Court: Denied—statutory elements do not sufficiently overlap; no lesser-included instruction required
Whether to remand under Rule 23B for additional facts showing counsel ineffective re: possession counts (failure to ask about cigarette brand / not calling mother)	Higley: Counsel failed to elicit that he smokes Pall Mall Menthols and that passengers may have left the cigarette box with heroin; mother would have corroborated his brand	State: Trial record already provided opportunities; tactical reasons existed for not calling mother; allegations speculative and insufficient to show deficient performance	Court: Denied—allegations were speculative; counsel’s omissions were reasonable trial strategy, so no 23B remand

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes ineffective-assistance two-prong Strickland standard)
State v. Baker, 671 P.2d 152 (Utah 1983) (defines test for lesser-included offense jury instructions)
State v. Bond, 361 P.3d 104 (Utah 2015) (futility of motions and strategic decisions do not establish ineffective assistance)
State v. Harvey, 446 P.3d 125 (Utah Ct. App. 2019) (addresses reliability of FSTs and sufficiency when tests stand alone)
State v. Salgado, 427 P.3d 1228 (Utah Ct. App. 2018) (standards for reviewing lesser-included instruction denials)
Taylor v. Warden, 905 P.2d 277 (Utah 1995) (discusses trial strategy and credibility considerations when deciding whether to call witnesses)