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State v. Cook

Court of Appeals of Utah

January 12, 2017

State of Utah, Appellee,
v.
Elizabeth Victoria Cook, Appellant.

         Fifth District Court, Cedar City Department The Honorable Thomas M. Higbee No. 155500004

          Matthew D. Carling, Attorney for Appellant

          Scott Garrett and Chad E. Dotson, Attorneys for Appellee

          Judge Gregory K. Orme authored this Memorandum Decision, in which Judges J. Frederic Voros Jr. and Stephen L. Roth concurred.

          MEMORANDUM DECISION

          ORME, Judge

         ¶1 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.

         ¶2 While responding to an unrelated report of an abandoned vehicle, an officer observed an ATV traveling at high speed on a snow-covered road.[1] 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.

         ¶3 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.

         ¶4 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.

         ¶5 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).

         ¶6 In Utah, a person may not legally be in ‚actual physical control of a vehicle‛[2] 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.‛[3] 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).

         ¶7 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.

         ¶8 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.

         ¶9 Second, Cook contends that the trial court erroneously admitted the breathalyzer test results, arguing that the officer improperly administered the test. Before presenting ...


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