Case Information
104 _________________________________________________________
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Plaintiff Appellee, v.
T ANGA B ECKSTROM , Appellant. Opinion No. ‐ Filed April
Fourth District, Provo Department Honorable James R. Taylor
No.
Aaron P. Dodd Dustin Parmley, Attorneys Appellant John E. Swallow Kris C. Leonard, Attorneys Appellee
J UDGE G REGORY K. O RME authored Opinion, which J UDGES
C AROLYN B. M C H UGH J. F REDERIC V OROS J R . concurred.
ORME, Judge: Tanga Beckstrom appeals conviction on one
count driving influence (DUI) resulting serious bodily injury another, third degree felony, see Utah Code Ann. § ‐ 6a ‐ ‐ 503(2)(a) (LexisNexis 2010), which pled guilty. We affirm.
BACKGROUND
¶2 A husband wife driving on snowy night on State Street Lehi. collided head vehicle after entered four lane street going wrong direction. The couple was seriously injured in the accident. LifeFlight was dispatched, but the snowstorm became so severe that the flight had cancelled, the couple was instead taken the hospital by ambulance.
¶3 The officer responding scene did immediately identify any behavior by Defendant led him believe she was impaired. But he soon observed Defendant’s “speech was slurred, slow, [and] deliberate”; eyes “glossy glazed over”; odor alcohol emanated from person; was stumbling walked. Defendant told officer couple been driving without their lights on, statement inconsistent with accounts other witnesses. Suspicious impaired, officer asked perform several tests. readily agreed. The officer concerned about administering tests outside Defendant, who wearing jeans, light shoes, light jacket, adequately dressed worsening cold. He considered administering tests inside nearby convenience store, he determined he would have been unable position his vehicle tests be recorded with dashboard video camera. The store also full employees customers. [1] ¶4 Administering tests cover awning outside store, which also considered, presented problems its own. Testing would have blocked customers from using gas pumps and, even awning, still would been subjected “blowing snow” and frigid temperatures. Importantly, validity can, words officer, “be greatly affected person’s condition cold.” determined “even with There indication record whether, any event, store management receptive police work being conducted within premises. awning, [weather] conditions not been appropriate standardized sobriety tests.” Meanwhile, the police station with “heat, level concrete, [and] snow” was just a couple blocks away, officer asked Defendant if he could take there complete tests. He specifically informed Defendant she was not under arrest. Defendant agreed relocation rode with officer police car less 90 seconds during two block journey. She apparently handcuffed otherwise restrained—except, perhaps, her seatbelt.
¶5 Upon arriving at station, did not call for other officers immediately administered tests a lighted, heated, secured parking garage. Defendant failed tests, confirming officer’s she impaired. Defendant then placed arrest. Defendant admitted to drinking vodka shots earlier night, subsequent intoxilyzer revealed blood alcohol content be .228—almost three times legal limit. Defendant charged traffic offense. Defendant pled not guilty. filed motion suppress, arguing
results testing, intoxilyzer testing, other evidence should suppressed because detention amounted de facto arrest without probable scope her exceeded permissible limits investigatory detention. The trial court denied motion, concluding that transporting station conduct did exceed permissible investigative all circumstances. then entered court also resolved de facto arrest argument. Although assured under arrest time, concluded cause existed justify arrest before transported
(continued...) *4 State v. contest plea to charge, conditioned her right
appeal her motion to suppress. generally State v. Sery , 758 P.2d 935, 937–941 (Utah Ct. App. 1988). sentenced to term probation fined $2,883. She now appeals.
ISSUE AND STANDARD OF REVIEW argues prolonging her was
impermissible. She insists rights were violated when she transported to nearby station testing. She requests this reverse denial motion suppress vacate conditional plea. ¶8 “In cases involving Fourth Amendment questions United States Constitution, we review mixed questions law and fact correctness standard,” “[f]actual findings underlying motion suppress are evaluated clear error.” State v. UT ¶¶ 11, 12, P.3d 397. No deference given court’s application law underlying factual findings search seizure cases. Brake 15, P.3d 699.
ANALYSIS
¶9 “Probable cause exists where ‘the facts circumstances within [the officers’] knowledge which they reasonably trustworthy information [are] sufficient themselves warrant man caution belief that’ offense has been (...continued) In view our affirmance explained in opinion, we decline render advisory opinion on whether established existed even before performed. v. is being committed.” v. Menke , 787 P.2d 537, 542 (Utah Ct.
App. 1990) (alterations in original) (quoting Brinegar v. United States , 338 U.S. 160, 175–76 (1949)). “Utah courts generally find that probable cause for DUI exists when slurred speech, bloodshot eyes, smell alcohol are accompanied by failed field tests.” Worwood 2007 47, 35. Of course, when some but not all these factors are present, may least reasonable, articulable suspicion that a suspect has driving influence, that suspicion will warrant prolonging suspect’s further investigation that officer’s can dispelled confirmed. See Terry Ohio U.S. 21, (1968). argues probable cause not existed prior to transportation testing establishes without additional evidence, bloodshot eyes, slurred speech, smell alcohol do not provide sufficient trustworthy information to support probable cause a DUI arrest. See UT 35. Even assuming correct key assumption—and we do mean imply is—it only serves underscore good work done case who chose not arrest Defendant spot rather first administer the are typical lynchpin establishing the needed support arrest, Worwood recognizes. id.
¶11 We conclude brief further facilitate permissible all circumstances, including harsh conditions and Defendant’s expressed consent move more protected setting less two minutes away. “In evaluating stop, should foremost consider ‘whether diligently contends consent involuntary. court, however, found consent coerced, has demonstrated this determination erroneous.
pursued means of investigation likely to confirm or dispel suspicions quickly.’” Id. ¶ (quoting United States v. Sharpe U.S. (1985)). In doing so, officers do have to employ the least intrusive means available; they must merely act reasonably choosing an alternative. id. Reasonableness is determined by evaluating the “totality the circumstances facing the officer.” Id. Among the circumstances can be taken into account are “officer’s concerns about safety security,” id. as well as physical conditions would prevent accurate sobriety testing, see id. 31.
¶12 The totality the circumstances supports the trial court’s determination the officer acted reasonably moving the testing venue inclement roadside warm well lit nearby parking garage, albeit one part police Weather conditions terrible just after accident intended deployment LifeFlight cancelled. wearing only light clothing unprepared for such severe weather. According his undisputed testimony, officer concerned about wellbeing as well as resulting impact cold have validity sobriety testing. Although officer briefly considered possibility of conducting sobriety inside nearby convenience store, would have unable position dash cam to record testing, trial noted, testing inside “would plainly intruded upon business.” While mentioned court, subjecting inside busy store also subjected possible embarrassment humiliation. It therefore reasonable find alternative location administer tests.
¶13 While officers may employ detention alternatives, must still comport constitutional video recording tests, if possible, is best interest State, suspects, public. v. requirements. See Worwood ¶¶ 29–30, P.3d 397. Transporting a suspect can increase the intrusiveness of an investigative and potentially escalate it the level of de facto arrest. See id. ¶ 30. For instance, transporting a suspect can be “benign when the movement does not change the level of coercion involved the stop,” moving a suspect “from public place enclosed, police ‐ dominated location can change the level of justification required from reasonable to cause.” Id. In Worwood Utah Supreme Court determined transporting a suspect side of road to officer’s private residence located more than a mile away where suspect was met additional law enforcement officers exceeded permissible investigatory detention there “no indication [the officer] concerned about safety.” Id. 31. id. ¶ 5. Additionally, Worwood noted record before it silent regarding physical factors could impacted testing such as grade pitch dirt road, weather conditions, time day. See id. 31. Worwood held if just one those factors been present, “a more expansive may justified suspicion.” Id . ¶14 The case at hand meets requirements . Severe primary impetus officer’s decision relocate testing venue. Concerns about harsh weather, inadequate clothing conditions, infeasibility using store as testing site all reasonably informed officer’s decision transport Defendant—with permission assurance she arrest—for less seconds better testing location. And any concern about intrusiveness coercion is minimal case, given consented both being transported having completed at police While new location characterized an “enclosed, dominated location,” there evidence level coercion intrusiveness increased once arrived parking garage. Backup called for, Defendant taken inside The tests conducted promptly and out of view of other officers or passersby. The new location offered benefits of “flatter pavement,” warmth, and light, opposed potential adverse impacts on her either severe at roadside or gawking customers convenience store. And its close proximity did lengthen Defendant’s detention much beyond what have entailed in relocating store. Cf. v. Simons UT 33, P.3d (analyzing reasonableness of extension “objectively in its totality,” with a primary focus whether extension “reasonably directed toward proper ends stop”). We conclude totality circumstances, “diligently pursued means investigation likely confirm dispel” his suspicion quickly, (citation internal quotation marks omitted), Defendant’s brief additional detention, with her permission, did exceed permissible investigative detention.
CONCLUSION
¶15 The arresting reasonable, articulable suspicion guilty following initial investigation accident. Under all circumstances, including Defendant’s express consent, it prolong few more minutes administer tests order confirm dispel do more appropriate setting snowy roadside. The confirmed officer’s suspicion, now firmly established, arrested. ruled correctly denying motion suppress, conviction affirmed.