District Court, Salt Lake Department The Honorable Mark S.
Kouris No. 121904077.
P. Newton, Attorney for Appellant
D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Gregory K.
Orme and Kate A. Toomey concurred.
Roger Wayne Simmons was arrested on suspicion of drunk
driving at the Salt Lake City International Airport. When
Simmons refused to submit voluntarily to any sobriety tests,
police obtained a warrant to collect a blood sample. Simmons
became agitated and combative, and the officers executing the
warrant restrained him while they drew his blood. Police
never handed a copy of the warrant to Simmons but instead
left a copy with his belongings. Simmons moved to suppress
the results of the blood test, claiming that the warrant was
invalid and was not properly served prior to the search. The
district court denied the motion, and Simmons appeals. We
Around two o'clock in the morning, Officer Kenny Brown of
the Salt Lake City International Airport Police Department
noticed Simmons driving a car significantly below the speed
limit, straddling two lanes, and drifting into the
park-and-wait lot. As he watched, Simmons drove past a stop
sign, turned into a commercial vehicle lane, and continued
the wrong way down a one-way road. Officer Brown activated
his overhead lights, but Simmons continued driving until his
car hit the concrete barrier of a parking stall.
As Officer Brown approached the car, he noticed Simmons
"moving very quickly, as if he was anxiously trying to
remove the keys from the ignition." When Officer Brown
knocked on the window, Simmons stared straight ahead and did
not respond. Officer Brown opened the door and smelled a
strong odor of alcohol coming from inside the car.
Eventually, Simmons slowly turned to the officer, smiled, and
raised his keys in the air, waving them back and forth.
Simmons apologized for driving so fast but explained that he
had a "covert message" to deliver to China.
Simmons's pants were unzipped, his eyes were bloodshot,
and he appeared confused. Officer Brown called for backup.
When additional officers arrived on the scene, Officer Brown
asked Simmons to step out of the vehicle to perform field
sobriety tests. Simmons refused all tests and claimed that
"he ha[d] not consumed any alcohol, and that there was
no alcohol in the vehicle." The officers requested
identification from Simmons, who "stated that his
license was somewhere in the vehicle." While retrieving
Simmons's driver license from the car, Officer Brown
noticed a cup in the center console, smelled its contents,
and recognized that it contained an alcoholic beverage.
Simmons was arrested and taken to the airport police station.
Because Simmons would not comply with police safety
instructions, he remained handcuffed in the holding cell
while police sought a warrant to obtain a blood sample.
Officer Brown contacted Sergeant Ryan Albrecht, a member of
the investigations team, and requested his assistance with a
search warrant application. Sergeant Albrecht prepared and
signed the warrant affidavit, which recited the relevant
facts. Throughout the affidavit, Sergeant Albrecht indicated
that it was Officer Brown who had witnessed the facts
supporting probable cause.
After Sergeant Albrecht obtained the warrant, Detective Jeff
Payne,  a certified phlebotomist, came to the
airport police station to collect the blood sample. Both
Detective Payne and Officer Brown informed Simmons that they
had a search warrant to draw his blood. Simmons became
"very agitated" and "made it clear that he was
not willingly going to cooperate with the blood draw."
Simmons became confrontational, shouting and spitting at the
officers, and they had to restrain him on the ground with a
spit hood over his head. After Detective Payne completed the
blood draw, another officer placed a copy of the warrant in
Simmons's bag along with his personal effects. The
district court found no evidence that Simmons was handed a
copy of the warrant.
The test revealed that Simmons had a blood alcohol
concentration of ".21 grams per 100 milliliter[s],
" more than twice the legal limit. See Utah
Code Ann. § 41-6a-502(1) (LexisNexis 2014). The State
charged Simmons with multiple offenses, including driving