State v. Preece

• Decision Date: 17 December 1998
• Docket Number: No. 971576-CA,971576-CA
• Citation: 971 P.2d 1
• Parties: 358 Utah Adv. Rep. 41 STATE of Utah, Plaintiff and Appellee, v. Boyd Lee PREECE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1

971 P.2d 1

358 Utah Adv. Rep. 41

STATE of Utah, Plaintiff and Appellee, v. Boyd Lee PREECE, Defendant and Appellant.

No. 971576-CA

Court of Appeals of Utah.

Dec. 17, 1998.

Gregory N. Skabelund, Logan, for Appellant.

Tony C. Baird, Cache County Attorney's Office, Logan, for Appellee.

Before Judges DAVIS, JACKSON, and ORME.

OPINION

ORME, Judge:

Defendant Boyd Lee Preece appeals his bench trial convictions for driving with a breath alcohol concentration greater than .08 grams, a class B misdemeanor, in violation of Utah Code Ann. § 41-6-44(2)(a)(i) (Supp.1998); ¹ possession of an open alcoholic beverage container in a motor vehicle, a class C misdemeanor, in violation of Utah Code Ann. § 41-6-44.20(2) (1993); and unsafe lane change, a class C misdemeanor, in violation of Utah Code Ann. § 41-6-69(1)(a) (1993). We affirm in part, reverse in part, and remand.

BACKGROUND

In reviewing the denial of a motion to suppress, we "recite the facts in a light most favorable to the trial court's findings." State v. Tetmyer, 947 P.2d 1157, 1158 (Utah Ct.App.1997). On March 10, 1997, sometime after 10:00 p.m., Utah Highway Patrol Trooper Troy Denney was driving west on State Route 142 near Richmond, Utah. Denney noticed a truck, with its left-hand blinker on, driving the opposite direction at about fifteen miles per hour below the speed limit. Denney turned his car around and began to follow the truck, which he later would learn had Preece at the wheel. After driving about a quarter mile with his left blinker on, Preece turned the blinker off for a few seconds, then back on, and then made a left-hand turn.

Preece continued down the road onto which he had just turned, proceeding at twenty to twenty-five miles per hour although the speed limit was either fifty or fifty-five miles per hour. Denney also turned left and continued to follow Preece. Denney had followed Preece from a distance of three to four car lengths for about one quarter of a mile when he saw Preece leave the road, come to nearly a complete stop, and then come back onto the road without signaling.

At trial, Preece and his son, Todd Earl Preece, who was a passenger in the truck, admitted they were drinking beer, while driving slowly so as to view property they were considering purchasing. ² Before Denney pulled them over, Preece and his son had each consumed between three and four beers. Preece and Todd testified that Preece was a slow, courteous driver who, upon seeing a car following close behind and not knowing it was driven by a law enforcement officer, pulled to the right of the road to let the car pass. However, when he pulled to the right, Preece left the road and nearly stopped before reentering his lane of travel. During these maneuvers, Preece failed to use his turn signal.

Just after 10:00 p.m., upon witnessing Preece's exit and reentry with no signal, Denney initiated a traffic stop and approached Preece's truck. As Denney reached the truck, he could smell alcohol and noticed a beer can on the seat between Preece and Todd and a case of beer next to Todd's feet. When Denny asked, Preece confirmed that he had been drinking. Denney asked Preece to exit the truck to perform a series of sobriety tests. Denney smelled the odor of alcohol emanating from Preece as he exited the truck.

During the sobriety tests, Denney noticed that Preece's balance was poor, concluded he was too impaired to safely drive his truck, and placed him under arrest. After these tests, Denney took Preece to the local jail where Preece was given an intoxilyzer test. That test registered a breath alcohol level of .101 grams, .021 higher than the legal limit of .08 grams. There was some discrepancy in the evidence, however, about the amount of time that elapsed between the traffic stop and the intoxilyzer test. That is, the intoxilyzer test report stated the elapsed time was seventy minutes, but at one point Denney testified the elapsed time was as much as ninety minutes. Denney also testified, however, that he stopped Preece at 10:03 p.m. and gave the test at 11:44, thereby indicating an elapsed time of one-hundred-one minutes. The trial court made no factual findings resolving this discrepancy.

On April 21, 1997, the State filed an information charging Preece with four counts: 1) driving while under the influence of alcohol, in violation of Utah Code Ann. § 41-6-44(2)(a)(ii) (Supp.1998); 2) driving with a breath/blood alcohol concentration greater than .08 grams, in violation of Utah Code Ann. § 41-6-44(2)(a)(i) (Supp.1998); 3) possession of an open alcoholic beverage container in a motor vehicle, in violation of Utah Code Ann. § 41-6-44.20 (1993); and 4) unsafe lane change, in violation of Utah Code Ann. § 41-6-69(1)(a) (1993).

Regarding the fourth count, unsafe lane change, the information specified that Preece violated section 41-6-69(1)(a) and described the acts constituting the offense as follows: "That the said Defendant, on the day and place aforesaid, driver of a vehicle, did move right or left upon a roadway or change lanes, when such movement could not be made with reasonable safety." Preece neither objected to the information before, during, or after trial, nor did he request a bill of particulars. Preece's only comment regarding the sufficiency of the information was during his counsel's closing argument:

Your honor, as the Court will recall at the suppression hearing we had some time ago and the basis of the memorandum, the memorandum of the prosecution provided and stated that the purpose of the stop was due to the fact that the defendant in this particular matter did not signal. The charges that have been brought against the defendant in this particular occasion is an ... unsafe lane change. Well there's no testimony here today, Your Honor, that there was a lane change. There's no testimony today that the, that the alleged turning was unsafe. There was no evidence whatsoever presented. In fact as I stated before, the prosecution based [the charge] upon [the fact that] an [ ]appropriate signal [was] not given. Well that's not the, that's not the charge that we're given in the Information.

Preece filed a motion to suppress, arguing the stop and arrest were unconstitutional and requesting that the trial court suppress all evidence obtained as a result thereof, including chemical test evidence. On May 21, 1997, the trial court held a hearing on the motion, where Preece's counsel advised the court his challenge was limited to the legality of the stop. ³ After hearing Trooper Denney's testimony, the trial court concluded the stop was a legitimate seizure under the Fourth Amendment because Denney had a reasonable articulable suspicion of drunken driving based on all the circumstances, including Preece driving down the road with his turn signal on, only later to leave and reenter the road without signaling, and on his driving in a rural area approximately thirty miles per hour below the speed limit. Consequently, the court denied Preece's motion to suppress.

At his subsequent bench trial, Preece attempted to introduce testimony from Trooper Denney regarding the absorptive and metabolic rates of alcohol. Denney testified that, under the "Widmark" formula, alcohol absorbs into the body at a rate of .15 per hour. Denney also testified that ninety minutes elapsed between the stop and the intoxilyzer test and that, under the Widmark formula, if Preece's alcohol level was rising, the level would have risen .0225 during this time. However, when Preece asked Denney if Preece's alcohol level, as of the time of the stop, would therefore have been below .08, i.e., upon subtracting the .0225 post-stop absorption from the .101 intoxilyzer result, the State objected. The prosecutor argued that an intoxilyzer result above .08, taken within two hours of a stop, gives rise to a conclusive presumption that the defendant had an alcohol level above .08 when driving. The trial court agreed and sustained the objection, concluding that "[i]t's a conclusive presumption under the statute." Preece did not take exception to the ruling, and his counsel said: "That's right."

The court found Preece guilty of count two, driving with an alcohol level above .08, because the intoxilyzer test showed a level of .101 within two hours of the time Denney stopped Preece. However, the court found Preece not guilty of count one, driving under the influence of alcohol to the extent that he was incapable of safely operating a vehicle. The trial court also found Preece guilty of the third and fourth counts, open container and unsafe lane change, respectively. The court later sentenced Preece to $1310.00 in fines and 180 days in jail, with all but two of the jail days suspended.

ISSUES AND STANDARDS OF REVIEW

Preece raises three issues for review. First, he challenges the trial court's denial of his motion to suppress evidence arising from the traffic stop, arguing that Trooper Denney lacked the reasonable articulable suspicion required under the Fourth Amendment. We review the trial court's findings of fact underlying its denial of a motion to suppress for clear error. See State v. Humphrey, 937 P.2d 137, 140-41 (Utah Ct.App.1997). Although we afford some " 'measure of discretion' " to the trial court's application of the standard, whether a set of facts supports a reasonable articulable suspicion is a question of law that we review for correctness. Id. at 140 (quoting State v. Pena, 869 P.2d 932, 939 (Utah 1994)).

Second, Preece claims that the information filed against him provided insufficient notice to prepare his defense because, although it mentioned the section of the Utah Code he violated, it did not expressly recite that he failed to use a turn signal. Whether an information provides sufficient notice is a question of law. See State v. Montoya, 910 P.2d 441, 443 (Utah Ct.App.), cert. denied, 919 P.2d 1208 (Utah 1996). Accordingly, we review this question for correctness. See State...