Park City v. Levy

----ooOoo----

Park City,
Plaintiff and Appellee,

v.

Sam Levy,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000610-CA

F I L E D
June 1, 2001 2001 UT App 171 -----

Third District, Park City Department
The Honorable Pat B. Brian

Attorneys:
Gerry D'elia, Park City, for Appellant
Thomas A. Daley, Park City, for Appellee

-----

Before Judges Billings, Davis, and Orme.

ORME, Judge:

Appellant contends that the trial court, upon being confronted with a shortage in the jury pool, ordered the pool supplemented in a manner inconsistent with the mandatory language of the applicable rule. Appellee did not a file a brief in the time permitted, nor for some two months thereafter. By order dated December 20, 2000, appellee was nonetheless given an additional seven days from that time in which to file its brief but still failed to do so. Appellee has not, by letter, memorandum, or otherwise, challenged appellant's assertions or otherwise suggested appellant is not entitled to relief.

The trial court failed to follow the mandate of the Utah Code of Judicial Administration in empaneling the jury in this case. Appellant was entitled to a properly empaneled jury. Accordingly, defendant's conviction is reversed and the case remanded for a new trial or such other proceedings as may now be in order.

Because it may surface again on remand, we comment briefly on the other issue raised by appellant. Effective May 3, 1999, the Utah Legislature amended Utah Code Ann. § 41-6-44(2)(a)(i) (Supp. 2000). The amendment seems to make the critical alcohol concentration no longer the one that existed at the time a defendant was driving, but rather the one that exists at any time "within two hours" of when a defendant was driving.(1) Constitutional questions aside, this different focus might in fact make the testimony of appellant's intended expert irrelevant if this were the version of the statute applicable to this case.

However, defendant was cited three months before the effective date of the amendment and thus is subject to the prior version of the statute, which, though permitting testing within two hours of driving, still focused on the alcohol concentration that existed at the time of driving, see Utah Code Ann. § 41-6-44(2)(a) (1998), making alcohol absorption very pertinent, indeed. See State v. Preece, 971 P.2d 1, 6 (Utah Ct. App. 1998).
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
James Z. Davis, Judge

1. The 1999 amendment appears not to be a mere change in semantics, but rather seems intended to alter the view that "[s]ection 41-6-44(2)(2)(i) of the Utah Code 'prohibits driving or controlling a vehicle with a blood-alcohol level of .08 [grams] or more, not driving or controlling a vehicle when a test shows a level of .08 [grams] or more.'" State v. Preece, 971 P.2d 1, 7 (Utah Ct. App. 1998) (quoting City of Orem v. Crandall, 760 P.2d 920, 924 (Utah Ct. App. 1988)).