District Court, West Jordan Department The Honorable Charlene
Barlow No. 151401656
J. Seppi and Heather J. Chesnut, Attorneys for Appellant
D. Reyes and Jeanne B. Inouye, Attorneys for Appellee
Diana Hagen authored this Opinion, in which Judges Gregory K.
Orme and Ryan M. Harris concurred.
Miriam Salgado appeals her convictions of one count of
interference with an arresting officer and one count of
driving under the influence (DUI). Salgado challenges the
sufficiency of the evidence supporting her DUI conviction.
Additionally, she contends that the trial court provided two
jury instructions that improperly commented on the evidence.
Finally, she argues that the trial court erred in declining
to instruct the jury on a minimum-speed violation as a lesser
included offense of DUI. We affirm.
While patrolling I-15 near 9000 South around 2 p.m., a Utah
Highway Patrol officer (the officer) noticed a car traveling
in the middle northbound lane at speeds "considerably
slower than the rest of traffic," creating a traffic
hazard for vehicles that had to drive around it. Because the
car had its hazard lights on, the officer thought it might be
having mechanical problems and that the driver-later
identified as Salgado-was attempting to merge over to the
shoulder of the freeway. To help Salgado safely pull over,
the officer activated his patrol vehicle's rear emergency
lights and blocked the two right lanes of traffic. Instead of
pulling over, Salgado continued to drive at forty-five miles
per hour (mph) for a while, before eventually increasing her
speed to sixty-five mph, five mph below the posted maximum
speed limit of seventy mph.
When Salgado failed to pull over, the officer pulled up
alongside the driver's side of her car and turned on his
siren to try to get her attention. She did not respond.
Instead, according to the officer, she stared "kind of
to the right and ahead." Thinking Salgado may be hearing
impaired, the officer drove to the passenger's side of
the vehicle and chirped his siren, but she continued to focus
straight ahead, avoiding eye contact.
At this point, the officer grew concerned that Salgado was
driving while impaired. The officer had nearly ten years of
experience with the Utah Highway Patrol and had completed his
standardized field sobriety instructor certification as well
as his drug recognition expert (DRE) certification, although
his DRE certification was no longer current. Based on his
training and experience, he understood that "it is
common with people that are under the influence of . . .
alcohol or drugs [to be] so focused on staying in their lane
or what's right ahead of them, that they really don't
know what's going on around them."
In an attempt to get Salgado's attention, the officer
turned on all of his patrol vehicle's emergency
equipment, moved in front of Salgado's car, and motioned
with his hand for her to pull over. Salgado moved over one
lane but continued driving. In response, the officer left the
emergency equipment on and fluctuated his distance from
Salgado's car, trying "to do anything [he] could to
get [her] attention."
Salgado began to drive on the skip lines that divide the
freeway lanes, prompting the officer to think she was going
to take the 7200 South exit. She did not. "Thinking
there might be a medical condition or . . . some
impairment," the officer notified dispatch of the
situation. Responding to that call, a detective in the area
began following Salgado and the officer. According to the
officer, at this point, Salgado "was not driving
recklessly, she just was not responding to anything."
Salgado maintained near-freeway speeds until she approached
4500 South where traffic slowed due to an unrelated
collision. As traffic slowed to approximately five to ten
mph, the officer used his public address system to tell
Salgado "to pull over to the right." The officer
thought Salgado had finally noticed him because she motioned
with her hand, but again she continued driving. Finally, when
traffic completely stopped, the officer exited his patrol
vehicle, knocked on Salgado's window, and instructed her
to pull over. As a safety precaution, the officer and
detective had approached the car with weapons drawn. With
Salgado finally stopped on the side of the road, the officer
ordered her out of the car and handcuffed her.
When asked why she had not stopped, Salgado initially claimed
that she never saw the officer but later stated that
"she didn't believe that she needed to stop."
When talking to Salgado, the officer noticed that she was
confused as to why she was being stopped and that her eyelids
were very droopy. Because the officer knew, through his
training and experience, that certain illegal drugs and
prescribed medications cause droopy eyelids, he asked Salgado
whether she had taken anything. Salgado stated that she had
taken four different medications at 5 a.m. that morning,
including tramadol, a central nervous system depressant with
effects similar to alcohol. Based on this admission and his
observation of Salgado's "intent focus straight
ahead, which is common with people that are under the
influence," the officer was concerned about her ability
to drive and consequently began a DUI investigation.
The investigation included three standardized field sobriety
tests: the horizontal gaze nystagmus test,  the nine-step
walk-and-turn, and the one-leg stand. The officer testified
that law enforcement use these field sobriety tests to assess
a driver's balance, coordination, and ability between
divide his or her attention to more than one task. During
each test, an officer looks for "clues" that the
driver is impaired by drugs and/or alcohol, such as jerking
eyes, inability to maintain balance, and failure to follow
instructions. More clues equate to "more signs of
Before the officer administered the first test, he asked
Salgado whether she suffered from any current injuries or
illnesses that might affect the test results. Because Salgado
said she had previously undergone brain surgery, the officer
examined her eyes to check for abnormalities that would
indicate head trauma, but he found none. Her pupils were the
same size, they were tracking equally, and there was no
resting eye nystagmus. Salgado denied having any other injury
that could impair her ability to perform the tests, such as
back, knee, or ankle problems.
Confident the results of the horizontal gaze nystagmus test
would be accurate, the officer conducted the three-part test.
During the first part of the test, the officer noticed that
"there was a lack of smooth pursuit" in both of
Salgado's eyes, resulting in "two clues." When
the officer asked Salgado to look as far left and right as
she could, he observed additional signs of nystagmus, which
amounted to two more clues. During the final part of the
test, however, Salgado showed no additional signs of
nystagmus. All told, Salgado demonstrated four clues on this
test, which, according to the officer, is a significant
indication that an individual is "either over the legal
limit of alcohol or impaired by drugs."
The officer next administered the nine-step walk-and-turn
test, looking for up to eight clues. He later testified that
studies have demonstrated that observing two clues during
this test is a significant indication that an individual is
impaired. Salgado exhibited six clues-failing to maintain
balance during the instruction phase of the test, missing
heel to toe several times, stepping off the line several
times, taking the wrong number of steps the first time,
taking the wrong number of steps the second time, and
performing an improper turn.
Finally, the officer asked Salgado to perform the one-leg
stand, a test with four potential clues. The officer observed
two clues when she put her foot down twice and when she
swayed during the test.
The officer gave all of the test instructions in English.
Although Salgado is a native Spanish speaker, she never asked
for an interpreter or otherwise indicated that she did not
understand. The officer testified that he did not believe
there was a language barrier sufficient to necessitate a
translator, because Salgado responded appropriately to the
questions that he asked her and she confirmed that she
The officer administered a breath test, which showed that
Salgado had not consumed alcohol. Nevertheless, based on his
training and experience, his observations of Salgado's
driving, and the results of the field sobriety tests, the
officer arrested Salgado for DUI. A subsequent chemical test
confirmed the presence of tramadol in Salgado's system.
During a post-arrest interview that same day, the officer
asked Salgado "where she was coming from, where she was
going, [and] what she'd been doing." Salgado was
again able to respond to all of the officer's questions.
She told him that she was having problems with her tire and
that she had been driving from Orem to her mechanic in Salt
The State ultimately charged Salgado with one count of
failure to respond to an officer's signal to stop, a
third degree felony, see Utah Code Ann. §
41-6a-210 (LexisNexis 2014), and one count of DUI, a class B
misdemeanor, see id. § 41-6a-502.
The case proceeded to trial. After the close of the
State's case, Salgado moved for a directed verdict on the
DUI charge, contending that there was insufficient evidence
to prove she was not "able to safely operate the motor
vehicle." Specifically, Salgado argued that the
State's only allegation was that "she was moving
slowly with hazard lights on . . . . And [that] this by
itself is not enough." In ruling on the motion, the
judge stated, "I think there is sufficient evidence that
the jury could look at it and determine that . . . the facts
support a finding of guilt" because "[h]er eyes
were drooping" and there ...