District Court, Cedar City Department The Honorable Thomas M.
Higbee No. 155500004
Matthew D. Carling, Attorney for Appellant
Garrett and Chad E. Dotson, Attorneys for Appellee
Gregory K. Orme authored this Memorandum Decision, in which
Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.
Elizabeth Victoria Cook appeals her conviction for driving
under the influence of alcohol with a passenger under sixteen
years of age, a class A misdemeanor. See Utah Code
Ann. §§ 41-6a-502(1)(a), -503(1)(b)(ii) (LexisNexis
2010). Cook raises three claims on appeal, none of which are
meritorious. We affirm.
While responding to an unrelated report of an abandoned
vehicle, an officer observed an ATV traveling at high speed
on a snow-covered road. The officer saw three individuals on
the ATV: a ten-year-old child in the front, Cook in the
middle, and an eighteen-year-old male in the back. The
officer also noticed that Cook was holding a beer can in one
hand and the handlebars with the other. The officer pulled
the ATV over.
When the officer approached the ATV, the beer can had
disappeared. Although she denied having consumed alcohol that
day, Cook smelled of alcohol, behaved belligerently, and
slurred her words. Eventually, the officer found an open,
half-consumed can of beer in the snow, which the male told
him belonged to Cook. The officer then found another can of
beer in Cook's pocket.
After being arrested and transported to the Iron County Jail,
Cook submitted to standard sobriety tests and a chemical
breath test. Cook failed the sobriety tests and had a breath
alcohol concentration (BAC) of .119 grams, well over the
legal limit of .08. See Utah Code Ann. §
41-6a-502(1)(a) (stating that ‚*a] person may not
operate or be in actual physical control of a vehicle‛
if a test reveals that a person ‚has a blood or breath
alcohol concentration of .08 grams or greater‛). Cook
was charged with driving under the influence of alcohol with
a passenger under the age of sixteen. Following a bench
trial, Cook was convicted and sentenced.
Cook makes three arguments on appeal. First, she argues that
she was not in ‚actual physical control‛ of the
ATV because the child was driving. ‚*W review the
trial court's conclusion that [Cook] was in actual
physical control of the vehicle for correctness.‛
See In re C.L., 2004 UT App 229U, para. 1. Second,
she argues that the trial court erroneously admitted the
results of her breathalyzer test. ‚We review a trial
court's decision to admit or preclude evidence‛ for
an abuse of discretion. State v. Vialpando, 2004 UT
App 95, ¶ 8, 89 P.3d 209. Third, Cook claims that her
trial counsel rendered constitutionally ineffective
assistance. ‚An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of
law, which we review for correctness.‛ State v.
Wyman, 2013 UT App 93, ¶ 5, 300 P.3d 1285 (citation
and internal quotation marks omitted).
In Utah, a person may not legally be in ‚actual
physical control of a vehicle‛ if the person ‚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.‛ Utah Code Ann. § 41-6a-502(1)(a)
(LexisNexis 2010) (emphasis added). Cook first claims that
she was not in ‚actual physical control‛ of the
ATV because the child was driving. We consider whether Cook
was in actual physical control of the vehicle by examining
‚the totality of the circumstances.‛ See
Vialpando, 2004 UT App 95, ¶ 22 (citation and
internal quotation marks omitted).
In its ordinary sense, the term ‚actual physical
control‛ means ‚existing or present bodily
restraint, directing influence, domination or
regulation.‛ State v. Bugger, 483 P.2d 442,
443 (Utah 1971) (citation and internal quotation marks
omitted). ‚A person need not actually move, or attempt
to move, a vehicle in order to have actual physical control;
the person only needs to have 'the apparent ability to
start and move the vehicle.'‛ State v.
Barnhart, 850 P.2d 473, 477 (Utah Ct. App. 1993)
(quoting Garcia v. Schwendiman, 645 P.2d 651, 654
(Utah 1982)). Because ‚there is a distinction between
operating a vehicle and having actual physical control of a
vehicle, a person need not operate, or attempt to operate, a
vehicle before he or she may be found to be in actual
physical control.‛ Id. at 479.
Cook claims that she had her hands on the handlebars for the
sole purpose of protecting the ten-year-old while the vehicle
came to a halt. Even if we assume that this is true and that
Cook had some similar purpose when the officer saw her
speeding along with one hand on the handlebars, Cook
nonetheless had actual physical control of the vehicle.
According to the child's trial testimony, Cook assisted
in steering by guiding the child's shoulders. The child
testified that Cook helped her steer ‚at first‛
because she ‚almost crashed.‛ Thus, we conclude,
under the totality of the circumstances, that Cook's
conduct qualified as actual physical control over the vehicle
even if the child was driving.
Second, Cook contends that the trial court erroneously
admitted the breathalyzer test results, arguing that the
officer improperly administered the test. Before presenting