State v. Dunn

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Diane Dunn,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030573-CA
 

F I L E D
(April 1, 2004)
 

2004 UT App 89

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Third District, Salt Lake Department

The Honorable William W. Barrett

Attorneys: Benjamin A. Hamilton, Salt Lake City, for Appellant

David E. Yocum and Gregory M. Warner, Salt Lake City, for Appellee

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Before Judges Bench, Greenwood, and Orme.

PER CURIAM:

This is an appeal of a conviction of Driving Under the Influence of Alcohol, a class B misdemeanor, Utah Code Annotated Section 41-6-44 (1998). Appellant (Dunn) makes the same argument previously addressed by this court in State v. Hernandez, 2003 UT App 276, 76 P.3d 198, cert. denied, 78 P.3d 987 (Utah 2003). Dunn, represented by the same counsel who represented appellant in Hernandez, argues that this court's opinion in that case is wrong. We are not persuaded.

Dunn argues that this court failed to address, in Hernandez, the issue of whether the statutory language of the offense of DUI, Utah Code Annotated Section 41-6-44, merges into Reckless Driving, Utah Code Annotated Section 41-6-45(1)(b) (2000), when two additional traffic offenses, besides DUI, are alleged. This court did, however, address the statutory argument. As indicated by this court, we did not separately address the statutory issue because the other argument made by Hernandez also required analysis of the statutory language. See Hernandez 2003 UT App 276 at ¶5 n.3.

Dunn has not demonstrated that this court's prior decision was in error in its determination of the same issues presented in this appeal. The conviction is affirmed.

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Russell W. Bench,

Associate Presiding Judge

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge