District Court, Ogden Department The Honorable Joseph Bean
P. Newton, Cherise M. Bacalski, and Emily Adams, Attorneys
D. Reyes and Marian Decker, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges David N.
Mortensen and Ryan M. Harris concurred.
Benjamin Brocksmith appeals his two convictions for
negligently operating a motor vehicle causing death or
serious bodily injury while knowingly and intentionally
having a measurable amount of a controlled substance in his
body. Because we conclude that trial counsel did not perform
deficiently in failing to raise the specific federal and
state constitutional issues that Brocksmith now raises on
appeal, we affirm.
Brocksmith was driving northbound on Wall Avenue in Ogden
when his SUV veered into the southbound lanes and collided
with another vehicle, inflicting serious bodily injury on the
vehicle's driver and a passenger. After Brocksmith
admitted that he had used "marijuana over the weekend,
" the investigating officer obtained a search warrant to
conduct a blood draw. Blood analysis revealed the presence of
tetrahydrocannabinol (THC) and THC metabolite.
The State subsequently charged Brocksmith with two violations
of Utah Code section 58-37-8(2)(g)-(h)(ii) (the Measurable
Amount Statute), which makes it a crime for a person to
operate a motor vehicle in a negligent manner causing serious
bodily injury or death while knowingly and intentionally
having a measurable amount of a controlled substance in the
During trial, Brocksmith orally moved to dismiss the charges
against him, arguing that the Measurable Amount Statute is
unconstitutional on its face and as applied under both the
United States and Utah Constitutions. Brocksmith did not
submit a memorandum in support of his motion to dismiss nor
did he provide any legal authority to bolster his contention.
In fact, when the trial court asked him to "elaborate a
little further" by pointing to the "elements of the
code section that [he found] unconstitutional, "
Brocksmith could not identify the sections of the code at
issue or any specific constitutional basis for his argument.
Instead, he noted only that the statute does not provide a
"causal nexus" "between the fact that
there's some trace amount of substance in someone's
blood and [the fact] that they caused an accident." In
other words, "but for this substance allegedly being in
Mr. Brocksmith's system, there would be no criminal count
The trial court denied the motion to dismiss, ruling that the
Measurable Amount Statute is constitutional both on its face
and as applied to Brocksmith. The jury convicted Brocksmith
on both charged counts. Brocksmith timely appeals.
AND STANDARD OF REVIEW
Brocksmith contends that he received ineffective assistance
of counsel because trial counsel failed to adequately raise
federal and state constitutional challenges to the Measurable
Amount Statute. "When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is
no lower court ruling to review and we must decide whether
the defendant was deprived of the effective assistance of