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State v. Simmons

Court of Appeals of Utah

November 30, 2017

State of Utah, Appellee,
v.
Roger Wayne Simmons, Appellant.

         Third District Court, Salt Lake Department The Honorable Mark S. Kouris No. 121904077.

          Samuel P. Newton, Attorney for Appellant

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Kate A. Toomey concurred.

          HAGEN, JUDGE.

         ¶1 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 affirm.

         BACKGROUND

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 After Sergeant Albrecht obtained the warrant, Detective Jeff Payne, [1] 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.

         ¶8 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. ยง 41-6a-502(1) (LexisNexis 2014). The State charged Simmons with multiple offenses, including driving ...


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