584 P.2d 873 | Utah | 1978
Lead Opinion
Laursen was given two 5-year concurrent sentences for homicide while driving under the influence of intoxicating liquor in a head-on collision with a motorcycle, killing two people. His blood-alcohol content reg
The trial court instructed the jury as to a presumption under the drunken driving statute
Laursen further says that the two sentences (concurrent) were error under 76-1-402, Utah Code Annotated, 1943:
Separate offenses arising out of single criminal episode — Included offenses. — (1) A defendant may be prosecuted in a single criminal action for all separate offenses arising out of a single criminal episode; however, when the same act of a defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision; an acquittal or conviction and sentence under any such provision bars a prosecution under any other such provision.
He cites several cases which are not pertinent save one, perhaps: Ladner v. U. S., 358 U.S. 169, 79 S.Ct. 209, 3 L.Ed.2d 199, which we do not deem dispositive here.
The State is correct when it says that the sentencing, not objected to, is not to be raised as an issue for the first time on appeal. However, it suggests that there is no merit to the contention anyway, since there were two different acts, two deaths, and two penalties. The query needs no answer, it would seem, since the State points to State v. Jones, 13 Utah 2d 35, 368 P.2d 262, where we held that a judgment as to larceny committed during a burglary was affirmable based on the fact that there were two separate offenses.
. 41-6-44, Utah Code Ann. 1953, as amended.
. State v. Hansen, 206 N.W. 352, which reflected that “flight” might justify an inference of non-consumption thereafter.
. Townsend v. State, 127 Ga.App. 797, 195 S.E.2d 474; State v. Cannon, 56 Haw. 161, 532 P.2d 391; People v. Kelley, 60 Mich.App. 162, 230 N.W.2d 357; People v. Dever, 26 Ill.App.3d 213, 324 N.E.2d 641.
Concurrence Opinion
(concurring in result with comments):
I concur in the result, adding these comments.
First, defendant was not arrested at the scene of the accident and his blood alcohol level was tested more than two hours later at a hospital. The expert testimony concerning the defendant’s .19 blood alcohol content at the time of the accident was based on a .15 blood alcohol content measured at the hospital.
Second, I read Utah’s criminal episode statute
. however, when the same act of a Defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision. [Emphasis added.]
In this case defendant committed only one act (i. e., while under the influence of intoxicating liquor, he “cause(d) the death of
. Utah Code Ann., 1953, Sec. 76-1-402, as amended.
. Utah Code Ann., 1953, Sec. 76-5-207, as amended.