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What Is A Utah DUI - The Basics of the Offense

Posted by attorney Philip Wormdahl

There were over fifteen thousand DUI arrests in Utah during 2010. Roughly two-thirds of those arrests were first-time offenders. With so many citizens facing DUI charges, most people should expect that someone they know will need representation for DUI. A skilled DUI attorney can help an accused person avoid jail, save their driver's license and protect their constitutional rights.

The Offense

Driving Under The Influence of Alcohol and\or Drugs, or “DUI," is codified at Utah Code Ann. 41-6a-502. The conduct prohibited by the statute is as follows:

41-6a-502. Driving under the influence of alcohol, drugs, or a combination of both or with specified or unsafe blood alcohol concentration -- Reporting of convictions. (1) A person may not operate or be in actual physical control of a vehicle within this state if the person: (a) has sufficient alcohol in the person's body that a subsequent chemical test shows that the person has a blood or breath alcohol concentration of .08 grams or greater at the time of the test; (b) is under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle; or (c) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.

The first element of the offense requires that the subject be “operating" or in “actual physical control" of a vehicle. While “operating" may be self explanatory, it is important to understand that a person can be convicted of DUI without actually “driving" a vehicle. Whether a person was in “actual physical control" of vehicle is question for a jury and is determined by the totality of the facts. A DUI attorney challenging “actual physical control," should look toRichfield City v. Walker, 790 P.2d 87 (1990) for a good primer of facts that may establish “actual physical control." Also, unlike most other violations of the traffic code, DUI doesn’t require the vehicle to be on a public street. “Parking lot" and “driveway" DUIs are common.

Second, the statute requires that a person be at or above the statutory “per se" alcohol limit of 0.08 grams of alcohol, or be under the influence to a degree that renders the person incapable of safely operating a vehicle. Meaning that a person under the “per se" limit of .08 could still be arrested for, charged with, and convicted of DUI.

It is clear from the language of the statute that a person can be prosecuted for DUI for both alcohol, and\or drugs. The definition of what counts as a “drug" is also specifically defined for DUI offenses in 41-6a-501 and is broad enough to include substances beyond “controlled substances." A common example of this is DUIs that involve the use of household inhalants like paint, glue or compressed air.

In addition to a “traditional" DUI under 41-6a-502, Utah drivers can be prosecuted for having “any measurable amount" of a controlled substance, or its metabolite in their body while driving- regardless of whether they are impaired or noticeably affected by the substance. The “Metabolite DUI" statute is found at UCA 41-6a-517. It is common for citizens of California, who are medical marijuana users, to be arrested for Metabolite DUI, while passing through Utah (unimpaired), because THC metabolites can remain in a person’s body for months after the active THC has left their system.

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