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State v. Salgado

Court of Appeals of Utah

July 12, 2018

State of Utah, Appellee,
v.
Miriam Salgado, Appellant.

          Third District Court, West Jordan Department The Honorable Charlene Barlow No. 151401656

          Lori J. Seppi and Heather J. Chesnut, Attorneys 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 Ryan M. Harris concurred.

          OPINION

          HAGEN, JUDGE

         ¶1 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.

         BACKGROUND[1]

         The Traffic Stop

         ¶2 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.

         ¶3 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.

         ¶4 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."

         ¶5 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."

         ¶6 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."

         ¶7 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.

         ¶8 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.

         ¶9 The investigation included three standardized field sobriety tests: the horizontal gaze nystagmus test, [2] 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 impairment."

         ¶10 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.

         ¶11 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."

         ¶12 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.

         ¶13 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.

         ¶14 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 understood.

         ¶15 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.

         ¶16 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 Lake City.

         ¶17 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.

         Procedural History

         ¶18 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 ...


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