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Per Se DUI in Utah

DUI Defense LawyerDUI and related charges require different types of proof. What is sometimes referred to in Utah as a "per se" DUI can be one of the easiest DUI types for a prosecutor to prove, and one of the toughest types to defend against. Having the assistance of an experienced criminal defense attorney can be important if you are facing prosecution for any kind of DUI-related or other criminal case. Contact us today to see how the right attorney can help you.

Alcohol-Related DUI Charges

Utah law provides two main avenues for the government to pursue in prosecuting an alcohol-related DUI case. One requires proof of actual impairment in the ability of the defendant to safely operate a vehicle. The other requires no proof of impairment, but instead requires proof of a BAC (blood or breath alcohol content) of 0.05 or higher.

Actual Impairment DUI

The first type of alcohol-related DUI requires proof that the defendant either "operated" or was in "actual physical control" of a vehicle while having sufficient alcohol in his or her system as to impair the defendant's ability to safely operate the vehicle. This is sometimes referred to as an "actual impairment" DUI. This type of DUI can be established without proof of any specific BAC. Instead, the prosecutor must prove that there was alcohol in the defendant's system, and that the alcohol (whatever the level might be) actually rendered the defendant incapable of safely operating a vehicle.

A DUI charge for actual impairment can be based on either alcohol, drugs, or a combination of both. For an actual impairment DUI, the prosecution need not prove that the drugs were possessed or used illegally. Even if drugs are taken as directed, with a prescription, and under the supervision of a doctor, a DUI charge can still be filed if those drugs caused actual impairment. (Note that if a controlled substance or controlled substance metabolite is found in the defendant's blood or urine, and if the defendant does not have a valid prescription for that controlled substance, a DUI-related charge of driving with measurable controlled substance or metabolite may be filed even without proof of actual impairment.)

When drugs are taken in combination with alcohol, it increases the chances that a driver may become impaired. The prosecutor is not required to show any particular BAC or any particular amount of the controlled substance. But the prosecutor is required to convince the jury, beyond a reasonable doubt, that the driver was actually impaired in his or her ability to safely operate the vehicle.

Per Se DUI

The second type of alcohol-related DUI only requires proof that the defendant had a BAC of 0.05 or greater. A conviction under a per se DUI theory requires no proof of impairment. Even with absolutely zero indication of actual impairment, if the prosecutor can establish proof beyond a reasonable doubt that the defendant had sufficient alcohol in his or her system to test at a BAC of 0.05 or higher at the time of the test, that is sufficient evidence to support a DUI conviction.

Timing of the Test & Rising BAC - The language "at the time of the test" is particularly important when dealing with a per se DUI charge. Under previous versions of Utah's DUI statute, a prosecutor had to prove that a defendant had a certain BAC at the time the defendant was operating or in actual physical control of the vehicle. This former statutory language provided a potential defense based on rising BAC.

Rising BAC refers to the fact that when a person consumes alcohol, it does not go immediately into the blood stream nor will it immediately register on a breath test. When a person consumes alcohol, it is slowly absorbed into the blood through contact in the mouth, stomach, etc. Absorption begins immediately, but it is a relatively slow process. As a result, a person's BAC can continue to rise for about an hour after the person stops drinking. Consider the following hypothetical scenario:

Jack goes to a bar and drinks five shots of whiskey in a period of about five minutes. Jack then gets up and leaves the bar. The parking lot is dark, and he stumbles briefly when he trips over an uneven part of the pavement. He feels fine, so he gets in his car and starts to drive home. The police officer who saw Jack stumble in the parking lot is concerned that he might be impaired, and pulls his patrol car onto the road to follow Jack. The police officer observes that Jack is driving straight, staying within his lane, signaling when appropriate, and otherwise appears to be in good control of his vehicle. But the officer also notes that Jack is traveling at five mph over the speed limit. After following Jack for just a few minutes, the officer pulls Jack over for speeding. He immediately notices the smell of alcohol coming from Jack's breath, and asks if Jack has been drinking. Jack admits that he just had five shots at the bar.

In the above hypothetical, if the police officer were to immediately administer a breath or blood alcohol test, it is entirely possible that Jack could test well below the 0.05 level. But if Jack refused the test and the officer had to wait in order to obtain a warrant for a blood draw, then Jack's BAC would likely be rising during that time. About an hour after Jack finished drinking, a blood or breath test would likely show a BAC of around 0.10 - over the legal limit.

Under prior versions of Utah's DUI statute, processes like absorption rates and elimination rates, time since the first drink was consumed, a defendant's sex and weight, retrograde extrapolation, and the Widmark Formula were all important in attempting to determine what the defendant's BAC was at the time the vehicle was being operated. But under Utah's current DUI statute, those issues are essentially irrelevant.

The current statute only requires that proof that the defendant had sufficient alcohol in his or her body at the time the defendant operated or was in actual physical control of the vehicle such that the defendant's BAC was 0.05 or higher at the time of the test. The differences in the statutory language may seem minor. But the implications are huge.

Applying the current statute to the hypothetical above, it would be irrelevant that Jack's BAC could have been only 0.02 at the time he was driving the vehicle. Assuming that Jack's BAC continued to rise for the next hour after Jack was arrested, evidence that he had a BAC of 0.10 when the test was given an hour after being stopped by police would be sufficient to support a DUI conviction.

After-the-Fact Alcohol Consumption - A DUI defense that can still remain viable even under the new statute involves a claim of alcohol consumption after the defendant has ceased to operate or be in actual physical control of a vehicle. Under the statute creating the per se DUI offense in Utah, the prosecutor must still show that there was sufficient alcohol in the defendant's body that a subsequent test showed a BAC of 0.05 or higher. In other words, the prosecutor must show that the illegal BAC level was the result of alcohol in the defendant's body at the time the defendant was operating or was in actual physical control of the vehicle. Consider the following hypothetical:

Jim is driving home from work, and accidentally runs off the road. He is 100% stone cold sober at the time of the accident. He is not injured, but he is severely shaken. He is close to home, so he walks the remaining distance to his house, calls the police to report the accident, and sits down to wait. He decides to have a couple of drinks to "calm his nerves" while he waits. When police arrive, they smell alcohol on Jim's breath and begin a DUI investigation including field sobriety tests and a request for a breath test. The test shows a BAC result of 0.09.

In the scenario described above, Jim is not guilty of DUI because at the time he was operating the vehicle there was no alcohol in his system. Even though his BAC at the time of testing was over the legal limit, that BAC was not the result of alcohol that was in the defendant's body at the time he operated or was in actual physical control of the vehicle.

Although Jim is actually not guilty of DUI, he may still find himself charged with DUI. Police or prosecutors may not believe his version of events, that alcohol was only consumed after the accident. If he has admitted to driving the vehicle and being in the accident, that may be sufficient evidence to convince a jury beyond a reasonable doubt that he was in fact driving under the influence. Jim will still be entitled to the presumption of innocence at trial, but it may be strategically necessary for him to testify on the issue of the timing of his alcohol consumption. The jury would then be left to decide the case. If the jury is not convinced beyond a reasonable doubt that the alcohol was in Jim's body when he was driving, then they should reach a not-guilty verdict.

Finding a DUI Attorney in Utah

Utah Criminal Defense LawyerEstablishing a strong DUI defense position can be a legally and factually complex process. Having the right attorney on your side can be critical.

Utah law imposes stiff penalties for DUI and other related convictions. If you are facing prosecution for DUI or other criminal charges, contact us today to arrange for an initial consultation.


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Serving Salt Lake, Davis, Weber, Utah, Cache, Tooele, Summit, Box Elder, and Wasatch Counties, and all of Utah.

Attorney Stephen Howard practices as part of the Canyons Law Group, LLC and Stephen W. Howard, PC.

Offices in Salt Lake and Davis Counties
560 South 300 East, Suite 200, Salt Lake City, UT 84111
952 S. Main St., Suite A, Layton, UT 84041

Call now to arrange for a confidential initial consultation with an experienced and effective Utah criminal defense lawyer.

In Salt Lake City, call 801-449-1409.
In Davis County, call 801-923-4345.

Stephen W. Howard, PC

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