Which Chemical Test Is Preferable in Utah during the Course of a DUI Investigation?
Interviewer: Is it better to have a blood draw during a DUI investigation in Utah?
Matthew Nebeker: Yes, on the blood draw, a lot of clients come in and they think that the blood test is better than the breathe test. To a certain degree, it is a little bit better. There are a lot of defenses in the blood draw cases.
Sometimes the Driver’s License Division Will Rely on the Findings of the Preliminary Toxicology Reports, While the Courts Wait for the Final Analysis
Sometimes takes a while to get those lab results back from the laboratory. The driver’s license division will request preliminary toxicology reports from the lab. Sometimes the lab will send those. That’s another frustrating thing about the administrative part of this, is that they will rely on those preliminary toxicology report. A court will not rely on a preliminary report and would want the final analysis, the final toxicology report.
Attorneys Avoid Trying to Continue the Hearings to wait for the Final Toxicology Reports because Their Client’s Temporary License Will Not Be Valid
That’s another difference between the driver’s license hearings and the court hearings. That’s another example right there. What lab results are we going to accept? One obstacle is that the citation is only valid for 30 days as a temporary license. If you try to continue to wait for the final analysis, you might not get that blood test back for 60 days to 90 days.
We never try and continue. Once we get the hearing within the 30 days, we almost never try and continue those because they always will schedule them outside of the 30 days. That means the client is in limbo as to the driver’s license division portion of their citation.
Case History: Prevailing at the Driver’s License Division in Utah
Interviewer: Have you ever had a special case in relation to the driver’s license division that you can share?
Matthew Nebeker: I had one here recently that comes to my mind. This was a second offense DUI for this young man. He was looking at a two year license suspension by the driver’s license division if they decided to take action. The officer that did the arrest and conducted the DUI investigation was a specially trained officer. He was what they call a drug recognition expert.
Why Do You Need an Experienced Attorney? It Can Be Possible to Refute the Officer’s Testimony during the Driver’s License Division Hearing
He had had training above and beyond the normal DUI detection. The officer was fairly honest in his report. The blood alcohol limit was a .165, a little bit over double the limit. During the hearing, I tested the officer on his administration of the field sobriety test. I had found that he had made a couple of mistakes in the administration of the walk and turn, the one leg stand.
In those mistakes, we reduced the number of points or clues against the driver. I took that and, the officer had made other comments. At the time of the stop, my client, he had broken up with his girlfriend. He had been crying and that’s why he was a little bit distracted in his driving. That’s why he got pulled over.
By Successfully Removing the Reasonable Suspicion That the Driver Was Impaired, an Attorney Can Prevail at the Hearing and Help His or Her Client Avoid a License Suspension
I said, “His eyes were red and blood shot and glassy because he had been crying. He’s upset that he had just broken up with his girlfriend.” If you take off the officer’s mistakes on the points that he assessed him, this puts him below the limit. I received the results back the other day and the hearing officer agreed with my conclusions, with my arguments, and they took no action on the license. This mean they’re going to give him his license back. He avoided a two-year suspension.
That was the most recent victory that I’ve had at driver’s license division, where we have a high BAC, we have an officer who is highly trained in DUI detection and drug detection and working through the process and by providing reasonable explanations about what was going on with the driver, we were able to prevail.
That was a good victory. It would have been difficult for this young man to be without a license for two years.