State v. Manwaring
| Decision Date | 30 December 2011 |
| Docket Number | No. 20090546–CA.,20090546–CA. |
| Citation | 268 P.3d 201,698 Utah Adv. Rep. 34,2011 UT App 443 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Benson MANWARING, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Randall T. Gaither, Salt Lake City, for Appellant.
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.
Before Judges ORME, ROTH, and CHRISTIANSEN.
¶ 1 Defendant Benson Manwaring appeals his conviction for driving under the influence of alcohol (DUI), see Utah Code Ann. § 41–6a–502(1)(a) (2010), a third degree felony, see id. § 41–6a–503(2). On appeal, Defendant contends that the trial court erred in denying his motion to suppress, refusing to allow his expert witness to testify and limiting the scope of his cross-examination of the State's expert, and concluding that subsection (1)(a) of section 41–6a–502 (the DUI statute) is not unconstitutionally vague. We affirm.
¶ 2 On June 19, 2005, Defendant was driving his motorcycle on State Street in Provo. As Defendant attempted a left turn, an oncoming vehicle veered out of its lane and struck Defendant. Defendant injured his leg in the collision. Emergency responders arrived on the scene and placed Defendant in the back of an ambulance for treatment. Police officer Kreston Bascom also arrived on the scene and began investigating the accident. Upon approaching Defendant, Officer Bascom testified that he “smelled alcohol on [Defendant's] breath” and suspected that he had been drinking. Officer Bascom asked Defendant if he had been drinking, and Defendant responded that he had a few drinks “much earlier.” Officer Bascom then called for backup to investigate Defendant for DUI.
¶ 3 In response, Officer Joshua Jennings arrived at the scene and began conducting a DUI investigation of Defendant. Officer Jennings also noticed a strong odor of alcohol emanating from Defendant. Officer Jennings observed three unopened cans of beer on the ground near Defendant's damaged motorcycle. Because he did not have a portable breath test (PBT) device or a DUI citation form with him at the accident scene, Officer Jennings did not immediately administer any sobriety tests.
¶ 4 While emergency responders transported Defendant to the hospital, Officer Jennings retrieved a PBT device and a DUI citation form from the police station and proceeded to the emergency room where Defendant had been taken. When he arrived at the hospital, Officer Jennings asked Defendant if he would submit to sobriety tests. Defendant indicated that he would. Because of Defendant's leg injury, Officer Jennings did not have Defendant perform tests requiring mobility, such as the “walk-and-turn” test or the “one-leg-stand” test. Officer Jennings did, however, administer the horizontal gaze nystagmus test to Defendant. This test measures a person's ability to track an object with his or her eyes. In an impaired person, according to testimony in this case, a noticeable “bouncing in the eyes” will occur as the person attempts to track an object. The investigating officer “observed nystagmus in both [of Defendant's] eyes at the maximum deviation.” This was sufficient, according to the officer, for him to conclude that Defendant likely had a blood alcohol concentration (BAC) above the legal limit of .08 at the time of the test.
¶ 5 Officer Jennings then asked Defendant to take a PBT. Defendant indicated he was willing to take the test, which Officer Jennings then administered. The PBT device measured Defendant's BAC at .107 grams, which Officer Jennings recorded. Officer Jennings testified, however, that he did not rely on the PBT for an exact measurement of Defendant's BAC. Rather, he relied on the PBT merely to confirm the presence of a significant level of alcohol in Defendant's system. Officer Jennings then placed Defendant under arrest.
¶ 6 After the arrest, Officer Jennings read Defendant the admonitions contained in the implied consent statute, see Utah Code Ann. § 41–6a–520 (2010), and asked Defendant if he would submit to a blood test. Defendant responded, “That's okay.” A forensic nurse arrived at the hospital at 11:55 p.m., approximately two-and-a-half hours after the accident, and drew a sample of Defendant's blood. The State forensic toxicology lab performed four tests on Defendant's blood sample, yielding BAC results of .105, .105, .106, and .107. Pursuant to policy, the lab rounded down from the lowest score, reporting that Defendant had a BAC of .10 at the time of the blood test. Defendant was then charged with one count of DUI in violation of Utah Code section 41–6a–502.
¶ 7 Before trial, Defendant filed a motion to suppress, contending that he had been illegally compelled to submit to the PBT 2 and that, as a result, all evidence from the PBT forward should be suppressed. The trial court rejected Defendant's argument and concluded, based on the testimony of the police officers, that Defendant voluntarily consented to the PBT.
¶ 8 Defendant also provided notice that he intended to call an expert witness to testify about his blood-alcohol level at the time he was driving his motorcycle just before the accident. The State objected to the introduction of Defendant's proposed expert testimony. The trial court ultimately determined that because Defendant was being charged under subsection (1)(a) of the DUI statute, which, the trial court concluded, focuses solely on a person's BAC at the time of a chemical test subsequent to driving, see Utah Code Ann. § 41–6a–502(1)(a), and not on a person's BAC at the time of driving, see id. § 41–6a–502(1)(c), the proposed expert testimony would be irrelevant. The district court likewise prohibited Defendant from asking the State's toxicology expert about blood-alcohol absorption rates because it deemed such testimony irrelevant under subsection (1)(a), see id. § 41–6a–502(1)(a).
¶ 9 Defendant also argued before trial that subsection (1)(a) of the DUI statute, see id., is unconstitutionally vague. The trial court rejected this challenge. Following a jury trial, Defendant was convicted of one count of DUI. He now appeals.
¶ 10 First, Defendant argues that the trial court erred when it denied his motion to suppress. “A trial court's ruling on a motion to suppress is reviewed for correctness, including its application of the law to the facts.” State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. However, “[t]he trial court's underlying factual findings are reviewed under the clearly erroneous standard.” Id.
¶ 11 Next, Defendant claims that the trial court deprived him of his constitutional right to present a defense by refusing to allow his expert to testify and limiting the scope of his cross-examination of the State's expert. “[W]e review a trial court's decision to exclude expert testimony for an abuse of discretion.” State v. Holm, 2006 UT 31, ¶ 10, 137 P.3d 726, cert. denied, 549 U.S. 1252, 127 S.Ct. 1371, 167 L.Ed.2d 159 (2007). “When reviewing a trial court's decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” State v. Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137.
¶ 12 Finally, Defendant contends that the trial court erred in rejecting his vagueness challenge to subsection (1)(a) of the DUI statute, see Utah Code Ann. § 41–6a–502(1)(a) (2010). We review constitutional challenges for correctness. See State v. Shepherd, 1999 UT App 305, ¶ 8, 989 P.2d 503.
¶ 13 Defendant claims that all evidence from his pre-arrest PBT and all evidence generated thereafter should have been suppressed for two reasons. First, Defendant argues that he did not validly consent to the pre-arrest PBT. Second, Defendant seems to argue that PBTs are inherently unreliable and, therefore, that the investigating officer should not have relied on Defendant's PBT results to establish probable cause. We reject both claims.
¶ 14 Defendant first argues that he did not give valid consent to the pre-arrest PBT. Specifically, Defendant asserts that his consent was not voluntary because a police officer threatened him with jail if he refused to submit to the test. Defendant also contends that administration of the pre-arrest PBT was illegal under the implied consent statute. See Utah Code Ann. § 41–6a–520.
¶ 15 “The Fourth Amendment ensures ‘[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures.’ ” State v. Tripp, 2010 UT 9, ¶ 26, 227 P.3d 1251 (alteration in original) ). A breath test administered by a police officer constitutes a search under the Fourth Amendment. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616–17, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). “A warrantless search is per se unreasonable unless the search falls within one of the few ‘specifically established and well-delineated exceptions.’ ” Tripp, 2010 UT 9, ¶ 26, 227 P.3d 1251 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). A search based on consent is one such exception. See id. To determine whether consent is valid, we use a two-pronged analysis: “[C]onsent is valid only if (1) the consent was given voluntarily, and (2) the consent was not obtained by police exploitation of [a] prior illegality.” Id. () (citation and internal quotation marks omitted).
¶ 16 Defendant claims that he was compelled to submit to the PBT in the back of the ambulance after a police officer threatened him with jail if he refused. The trial court found, however, that no police officer ever threatened Defendant with jail if he refused to submit to the PBT. In fact, the trial court found that the investigating officer administered the PBT to Defendant at the hospital, not in the back of the ambulance as Defendant claims. We note that “[f]actual findings underlying...
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