Mouth Checks and Breath Tests Under Baker

 The Utah Court of Appeals recently published an opinion that will impact our breath tests in DUI cases cases going forward. The decision came in State v. Montgomery, 2026 Ut App 77. 

The relevant basic facts of the case holding were that after the suspect was lawfully arrested, the officer completed a 30-minute observation prior to the breath test, but that no initial mouth check was done to start that observation. This is where this case hinges. No other aspect of the case was found problematic, however, the failure to do an initial mouth check became fatal to the admissibility of the ultimate breath test. 

Every officer that has been training on operation of the Intoxilyzer has been trained to do an initial mouth check prior to the required 15-minute observation period. We have had this issue pop up regularly enough around the state where officers were failing to do the mouth check. The basic argument at suppression hearings has been that while it is part of their training and certainly a best practice, the initial mouth check is not required for the intoxilyzer to properly issue an accurate reading on the person's BAC. We have won some of those motions around the state, and we have lost some of those motions from around the state. However, the Court of Appeals has now articulated this initial mouth check as a required factor for admissibility of a breath test. The holding says that "an initial mouth check is required to satisfy the third foundational requirement for admissibility of breath alcohol test results." 

While always a part of the training on the Intoxilyzer, officers have at times missed this mouth check either out of error or by habit. This failure to do an intial mouth check is now a fatal blow to the breat test results and we need to make sure our officers know this going forward. 

You may read the full opinion here: State v. Montgomery. 

Probable Cause in DUI Case: State v. Dutton

 The Utah Court of Appeals has given a helpful analysis of probable cause as it relates to DUI cases. 

Facts: 

Defendant drove to the bank and bank employees called the police as they were worried that she was intoxicated. Her driving was reported as "iffy," her speech was slow, and she seemed "out of it." A police officer that was personally aware of the defendant responded and found her vehicle. He went to make a stop for a broken taillight, but defendant pulled into her driveway. When officer approached, defendant handed him unrelated paperwork and was slow to produce her diver license. Officer noted defendant's speech was slurred and she had a "thick tongue." She stumbled when she exited the vehicle and appeared disoriented. While he did not smell the odor of alcohol, he did suspect she was impaired. Officer did the HGN test which showed 4 of 6 clues. Due to a back injury, the other two tests were not completed. 

Officer arrested defendant and a blood draw resulted in various controlled substances being present in defendant's blood. 

Issue: Defendant challenged both the probable cause for the arrest and also claimed ineffective assistance of counsel due to no jury unanimity instruction. While a jury unanimity instruction was given for the DUI elements, there were two theories presented in that the defendant was impaired while driving to the bank and also after she arrived home and was still in actual physical control of the vehicle. There was no unanimity instruction for the alternate theories. 

Holding: There was clearly probable cause for the arrest and an officer knowing defendant personally did not outweigh the evidence available. While the jury was not instructed on unanimity for the theory of DUI, the court said it is highly unlikely that any juror would have believed the defendant's story and there was evidence of her impairment at the bank to corroborate the finding of guilt. 

This is a helpful case for both unanimity in DUI cases and also the probable cause analysis. You can find the full opinion here: State v Dutton

State v. Millett - Blood Toxicology Decision

 There was a useful decision out of the court of appeals regarding toxicologist testimony and the foundation necessary for them to testify. 

In State v. Millett the defendant was arguing that not having the scientist present that did some initial preliminary testing present and also not having the person that calibrated the equipment used to test violated the defendant's right to cross examination. 

The toxicologist testified unequivocally that the preliminary testing would not have any impact on the confirmation tests, and therefore, would not impact the ultimate results. The Court of Appeals held that the lack of the two witnesses the defendant was demanding to cross examine would at best go to the weight of the evidence, not the admissibility. 

This is not a groundbreaking holding, but it is helpful if anyone encounters similar arguments we often get when defendants are challenging everything and the kitchen sink in DUI related cases. There is also some relevant case law for traffic stops and PC for arrest as well in the opinion. 

You can read the full opinion here: State v Millett

Saving Statute and Drugged Driving Recodification

 The Utah Supreme Court recently issued a ruling on an important issue for driving with a measurable controlled substance (DMCS) cases. To understand the court's decision, we have to understand how we got here. 

Prior to 2022, Utah had multiple areas of the code where a person could be charged when operating a motor vehicle under the influence of drugs and/or alcohol and causing serious bodily injury or death. The level of the offense was different based upon the substance, and could be somewhat confusing as to what level of offense to charge and which section of the code is appropriate. In the 2022 legislative session, a group of stakeholders set out to simply and consolidate all these offenses into clear and consistent code sections centrally located together. 

This effort was not controversial and was supported across the board by stakeholders, including prosecutors and defense attorneys. The intent was not to decriminalize any behavior. The goal was simply to put all the similar statutes in the same code sections and make penalties consistent across the board. 

This brings us to State v. Cooke. Cooke was charged with an offense in 2016 under the old code sections. Due to several continuances and delays, mostly due to the defense counsel requests and then covid, the case proceeded beyond the 2022 statutory change/consolidation. Cooke argued that his case must be dismissed because the crime he was charged with originally no longer existed. 

The state argued that Utah's "saving statute" applied and the prosecution could proceed under the old statute, even though it had been repealed. The Supreme Court wisely determined in the state's favor. This was an important decision as it holds up all cases filed prior to the 2022 change which was more akin to a recodification than a repeal of the statute. This case will be important if anyone tries to make a similar challenge to Cooke. 

You can view the entire opinion here: State v. Cooke. 

Unanimity in DUI Cases - State v. Cissel

 The Utah Court of Appeals recently released a case about jury unanimity in DUI cases. To be clear, this was an ineffective assistance of counsel case, not directly a unanimity case, but the analysis is the same. 

The question was essentially do DUI jury instructions need a special verdict form to ensure that the jury is unanimous on which prong of the DUI statute they are finding the defendant guilty. It is always good to keep up with the relevant caselaw on unanimity, and that has been developing and progressing steadily the last few years here in Utah. However, the Court of Appeals took a different line on this one. The ultimate holding was that counsel was not defficient in the case because the three prongs in the DUI statute are not separate offenses, but simply different means, or theories, in how one violates the DUI statute. 

An example quoted by the Court of Appeals is a murder case where a person both poisons and suffocates a victim. The jury does not have to be unanimous on whether it was the poison or the suffocation that killed the person, they just have to be unanimous that the defendant murdered the person. The means or theories can be different. 

It is always good to simplify a case as much as possible. In DUI cases I often advise to not include the prongs you are not going to be arguing in jury instructions just to simplify the case for the jury and not get into the weeds. The writing on the wall with unanimity had led me to believe that special verdict forms for DUI cases were a good idea. The Cissel case stands for that being unnecessary. You will have to determine what works best for you in each case, but the DUI statute under Cissel is not viewed as separate offenses or events, but simply alternate means or theories, and unanimity on a special verdict form as been trending in Utah case law does not apply. 

Of course, the Utah Supreme Court could take this case and go another way. There is also the chance that over time caselaw develops that take these arguments a different direction. However, as of this writing, that is the standard for analyzing these DUI cases under unanimity. 

You can read the full opinion here: State v. Cissel

State v. Fraughton

Recently the Court of Appeals decided a case that shows the importance of using special verdict forms in your DUI jury trial. 

There isn't really anything novel about the facts of the case or the decision made, but it is worth noting that the presence of a special verdict form is what the court relied upon to "easily dispatch" the defendant's arguments on appeal. 

It's a short case and one that is not groundbreaking, but it certainly is illustrative and gives guidance on good practices in DUI cases. You may read the full opinion on the link below. 

State v. Fraughton

Reasonable Suspicion and Citizen Informants in DUI Cases

The Utah Court of Appeals recently took up another case that reviewed when a citizen informant's tip can lead to reasonable suspicion for an officer to make a stop. 

The case is actually an ineffective assistance of counsel appeal, however, the court did the analysis to see if the motion defendant was saying counsel should have filed would have any merit or chance of being successful. 

A solid analysis of the factors involved with citizen informant tips and reasonable suspicion was done by the court. Ultimately, the Court of Appeals rejected defendant's argument, stating that there was ample reasonable articulable suspicion for the detention in the case. The ultimate holding was as follows: 

"Before Officer approached Perkins, he received a communication from police dispatch that Witness had observed Perkins purchase beer, open a can while seated in the driver’s seat of his vehicle, and then drive onto the highway. Even though neither Witness nor Officer saw Perkins drive erratically or commit any traffic infractions, the facts relayed by Witness amply support the initial investigative detention because operating a vehicle containing an open container of alcohol or while drinking alcohol is a criminal offense under Utah law." 

You may review the whole opinion here: State v. Perkins