District Court, Salt Lake Department The Honorable James T.
Blanch No. 161903234
Adams, Attorney for Appellant.
D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee.
David N. Mortensen authored this Opinion, in which Judges
Jill M. Pohlman and Diana Hagen concurred.
A police officer (Officer) testified at trial, based on
information he received in his police training, about the
human body's average rate of elimination of alcohol-the
"burn-off rate." Randy Lynn Harvey, who was
standing trial for driving under the influence (DUI),
objected for lack of foundation. The district court overruled
the objection, and a jury found Harvey guilty. Harvey
subsequently filed a motion for a new trial, asserting that
Officer gave expert testimony as a lay witness. The district
court denied the motion. Harvey appeals, and we reverse.
Around one o'clock in the morning in late November 2015,
Officer, a fourteen-year police veteran with advanced
roadside impairment training and about 200 DUI arrests under
his belt, spotted a pickup truck traveling without its
taillights illuminated and initiated a traffic stop by
turning on his overhead lights. Harvey, who was driving the
truck, continued for about one block and stopped at a red
light as Officer, with his patrol car's lights still
flashing, followed him. Harvey proceeded through the light
after it had turned green, travelled another half block, and
then pulled over, bringing the truck to a stop. Officer noted
that the street was "pretty dead" and that there
was "quite a bit of parking [at] that time of night on
the side of the road."
When Officer approached the truck, Harvey rolled down the
window about two inches, but he did not look Officer in the
eye. Officer observed that Harvey's left eye
"appeared to be glassy and bloodshot." Officer also
detected "a strong odor of an alcoholic beverage
emanating from the vehicle" and saw a "passenger
attempting to hide a . . . half-consumed [bottle of] vodka .
. . in a bag behind her seat." When asked, Harvey denied
that he had been drinking.
Officer requested that Harvey perform several field sobriety
tests (FST). Officer recalled that Harvey appeared to have
good balance when he exited his vehicle to take the FSTs. But
with regard to his ability to perform the FSTs, Harvey
advised Officer that (1) he had a titanium ankle replacement
because he had been shot with a .40 caliber bullet in one leg
and (2) he had been bitten in the calf on the other leg by a
shark when he was a child.
Officer had Harvey perform three standardized FSTs. The first
was the horizontal gaze nystagmus test (HGN test). In
administering the HGN test, Officer noticed six out of a
possible six indicators that Harvey had alcohol in his
system. Officer next administered the vertical gaze nystagmus
test (VGN test), but Harvey's performance during this
test did not show any indicators of the presence of alcohol.
At trial, Officer testified that the VGN test detects when
someone has a high level of alcohol in his blood. The third
FST was the walk-and-turn test, which Harvey had indicated he
could probably complete despite his injuries, but he advised
Officer that "numbness" in his calf would
"prevent him from feeling when his feet touched heel to
toe." Officer recalled telling Harvey that he
"would take that into consideration." Harvey's
performance during this test showed six out of eight possible
indicators of the presence of alcohol in his system. Because
Harvey's prior leg injuries prevented him from performing
the last standardized FST-the one-leg-stand test-Officer
opted to have Harvey recite the letters of the alphabet and
count backward. Harvey performed both tests without error.
Based on Harvey's performance on the walk-and-turn and
HGN tests and the odor of the alcoholic beverage, Officer
arrested him for DUI. After transporting Harvey to the police
station, Officer requested that Harvey take a breath test to
determine his blood alcohol content (BAC). Even after being
warned that refusal to take the test may result in the loss
of his driver license, Harvey refused to submit to it.
Officer then obtained a search warrant to collect
Harvey's blood for testing, and a sample was drawn at
about three o'clock in the morning, two hours after
Harvey was pulled over. Harvey's blood was subjected to
two identical tests-a screening test and a confirmation
test-with each test producing two results. The screening test
measured Harvey's BAC at .075 and .076. The confirmation
test yielded two BAC results of .081.
The State charged Harvey with DUI. Under Utah law, Harvey
could be found guilty of DUI if (a) a subsequent chemical
test showed that he had a BAC of .08 or greater at the time
of the test, (b) he was under the influence of alcohol to a
degree that rendered him incapable of safely operating a
vehicle, or (c) he had a BAC of .08 or greater while
operating a vehicle. Utah Code Ann. § 41-6a-502(1)
(LexisNexis 2014). In Harvey's case, the DUI was charged
as a third-degree felony based on two prior DUI convictions
within the last ten years. See id. §