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State v. Harvey

Court of Appeals of Utah

June 20, 2019

State of Utah, Appellee,
Randy Lynn Harvey, Appellant.

          Third District Court, Salt Lake Department The Honorable James T. Blanch No. 161903234

          Emily Adams, Attorney for Appellant.

          Sean D. Reyes and Lindsey L. Wheeler, Attorneys for Appellee.

          Judge David N. Mortensen authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.



         ¶1 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.


         The Arrest

         ¶2 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."

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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. § 41-6a-503(2)(b).

         The ...

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