Rich Cnty v. Breitweiser

Rich County v. Breitweiser, Case No. 971596-CA, Filed October 16, 1998. IN THE UTAH COURT OF APPEALS

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MEMORANDUM DECISION (Not For Official Publication)


Rich County, Plaintiff and Appellee, 

v. 

Larry H. Breitweiser, Defendant and Appellant. 


Case No. 971596-CA

F I L E D (October 16, 1998)   -----  

First District, Randolph Department

The Honorable Clint S. Judkins

Attorneys: D. Bruce Oliver, Salt Lake City, for Appellant

George Preston, Logan, for Appellee -----  

Before Judges Davis, Wilkins, and Greenwood.

DAVIS, Presiding Judge:

Defendant appeals his conviction of driving with a .08 grams alcohol content or greater, in violation of Utah Code Ann. 41-6-44(1)(a)(i) (1993). The trial court ruled that, although the officer on the scene did not have sufficient probable cause to arrest defendant, reasonable grounds existed for the officer to believe defendant may have been in violation of section 41-6-44(1)(a), thereby justifying the officer's request that defendant's blood be drawn for purposes of administering a blood alcohol test.
 
  ISSUES  

Defendant argues two issues on appeal. First, he asserts that the conviction should be overturned because the trial court improperly denied his motion to suppress the blood-draw evidence. Next, defendant argues the trial court improperly denied his Motion to Arrest Judgment. Defendant asserts that although the Information as well as the evidence at trial charged defendant with having a blood alcohol content of .08% or greater, the jury instructions required a finding that defendant's blood contained .08 grams of alcohol per 100 milliliters or greater in order to convict. Defendant asserts further that because there was no evidence presented which would correlate the test with the jury instructions, the State has failed to prove a violation of law and therefore this court should vacate the conviction.
 
  ANALYSIS

We first address whether the trial court properly denied defendant's motion to suppress the blood-draw evidence.

"The factual findings underlying a trial court's decision to grant or deny a motion to suppress evidence are reviewed under the deferential clearly-erroneous standard, and the legal conclusions are reviewed for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts."

State v. O'Brien, 959 P.2d 647, 648 (Utah Ct. App. 1998) (citations omitted). Here, the facts of the case are undisputed but the application of the legal standard to the facts is in question.

The Utah statute relevant to this issue reads:

A person operating a motor vehicle in this state is considered to have given his consent to a chemical test or tests of his breath, blood, or urine for the purpose of determining whether he was operating or in actual physical control of a motor vehicle while having a blood or breath alcohol content statutorily prohibited under Section 41-6-44 . . . , if the test is . . . administered at the direction of a peace officer having grounds to believe that person to have been operating or in actual physical control of a motor vehicle while having a blood or breath alcohol content statutorily prohibited under Section 41-6-44 . . . .

Utah Code Ann. 41-6-44.10(1)(a) (1993). The trial court relied on this statute in denying defendant's motion to suppress the blood-draw evidence, ruling that the officer had grounds to believe that the defendant had been operating a motor vehicle while having the blood alcohol content statutorily prohibited and, further, that the defendant had given his actual consent for the blood-draw.

"'A warrantless search conducted pursuant to a consent that is voluntary in fact does not violate the fourth amendment.'" State v. Bredehoft, No. 941724-CA, slip op. at 12 (Utah Ct. App. Oct. 1, 1998) (quoting State v. Webb, 790 P.2d 65, 82 (Utah Ct. App. 1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S. Ct. 2041, 2043 (1973))). Defendant did not object or resist when informed by the officer of the need to draw his blood. In fact, he verbally consented to the request for a blood sample. Our only concern, therefore, is whether defendant's consent was voluntary. See id.

"'[T]he question [of] whether a consent . . . was in fact "voluntary" or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.'" State v. Marshall, 791 P.2d 880, 887 (Utah Ct. App. 1990) (quoting Schneckloth, 412 U.S. at 227, 93 S. Ct. at 2047-48). Defendant asserts that because he was placed under arrest without probable cause, his consent was a product of duress or coercion. However, under the Utah Supreme Court's analysis in State v. Whittenback, "a mere request to search" is a factor which may show a lack of duress or coercion. State v. Whittenback, 621 P.2d 103, 106 (Utah 1980). The record shows defendant answered in the affirmative when asked if he would consent to a blood-draw. There is no indication in the record that defendant being placed under arrest had anything to do with the circumstances surrounding the administration of the blood-draw or defendant's consent to the blood-draw. In this instance, the trial judge correctly applied the legal standard to the facts before him. Therefore, we affirm the trial court's admission of the blood-draw evidence.

The second issue is whether the use of two different representations of the defendant's blood alcohol ratio was an error that prevented the State from proving an element of the offense. Although defendant is correct in his assertion that a different representation of blood alcohol content was used in the Information and the toxicologist's report as compared to the jury instructions and statute, one of the fundamental rules of statutory construction is that the statute should be looked at as a whole and in light of the general purpose it was intended to serve; and should be so interpreted and applied as to accomplish that objective. In order to give the statute the implementation which will fulfill its purpose, reason and intention sometimes prevail over technically applied literalness.

State v. Jones, 735 P.2d 399, 402 (Utah Ct. App. 1987) (quoting Andrus v. Allred, 17 Utah 2d 106, 109, 404 P.2d 972, 974 (1965)). In the present case, the statute clearly intends to prevent drivers from operating vehicles if their blood alcohol content is above .08 grams per 100 milliliters of blood. Although the Information used .08% and the toxicologist's report at trial used .12% as representations of blood alcohol content, there is no indication in the record that the two representations were intended to be anything other than the blood alcohol level correctly stated in the instructions.(1) The intent of the statute is therefore not jeopardized and should prevail.

In addition, if evidence of a blood alcohol representation different from the statutory representation was erroneously admitted, that fact alone is insufficient to set aside a verdict unless it has had a substantial influence in bringing about the verdict. Cf. Bambrough v. Bethers, 552 P.2d 1286, 1290 (Utah 1976). For this court to find that the erroneous blood alcohol representation "[h]as affected the substantial rights of [defendant], we must consider the impact of that error in the context of the whole proceeding." Kelson v. Salt Lake County, 784 P.2d 1152, 1157 (Utah 1989). Here, the error was one that did not affect the outcome of the proceeding. There is no indication that the jury or witnesses were in any way confused by the different representations or that the representations had any impact at all on the jury's decision.

From a procedural standpoint, defendant's argument also fails. Defendant did not object to the information at any time within five days of the trial as required under Rule 12(b)(1) of the Utah Rules of Criminal Procedure. Therefore, he is precluded from raising the issue on appeal. See State v. Hall, 671 P.2d 201, 202 (Utah 1983). If an issue is waived at trial, defendant cannot revive the issue simply by raising it in a post-trial motion to arrest judgment. See State v. Belgard, 811 P.2d 211, 216 (Utah Ct. App. 1991).

Affirmed.
 
 
 
 

______________________________

James Z. Davis,

Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________

Michael J. Wilkins,

Associate Presiding Judge
 
 
 
 

______________________________

Pamela T. Greenwood, Judge

1. At oral argument, counsel for defendant advised this court that he is not asserting the different representations of blood alcohol content (.0008 and .0012, respectively) affect the charge in the Information or the effect of the toxicologist's report; only that the jury lacked the ability to compare the amounts to the jury instructions in lieu of any testimony on that point.