Rosengreen v. Dpt of Public Safety

Rosengreen v. Dpt of Public Safety

IN THE UTAH COURT OF APPEALS

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Steven G. Rosengreen,
Appellant,

v.

State of Utah, Department of Public Safety, Drivers License Division; and
G. Barton Blackstock, Bureau Chief,
Appellees.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010984-CA
 

F I L E D
(June 5, 2003)
 

2003 UT App 183

 

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Second District, Farmington Department

The Honorable Jon M. Memmott

Attorneys: Aric Cramer, Bountiful, for Appellant

Mark L. Shurtleff and Rebecca D. Waldron, Salt Lake City, for Appellees

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Before Judges Jackson, Davis, and Thorne.

DAVIS, Judge:

Petitioner Steven G. Rosengreen appeals from an order affirming the revocation of his driver license under Utah Code Ann. § 41-6-44.10(2) (Supp. 2002).(1) We affirm.

"In a trial de novo, the district court must determine by a preponderance of the evidence whether the petitioner's license is subject to revocation" under Utah Code Ann. § 41-6-44.10(2). Lopez v. Schwendiman, 720 P.2d 778, 780 (Utah 1986) (quotations and citation omitted). "Our review of that determination is deferential to the trial court's view of the evidence unless the trial court has misapplied principles of law or its findings are clearly against the weight of the evidence." Id. A decision to revoke a driver license must be "supported by reliable legal evidence." Kehl v. Schwendiman, 735 P.2d 413, 415 (Utah Ct. App. 1987).

In essence, Rosengreen argues that the evidence was insufficient to establish reasonable grounds(2) to support his arrest for driving under the influence and, therefore, the revocation of his driver license following his refusal to submit to a breathalyzer test was improper. See Utah Code Ann. § 44-6-44.10(2)(a)-(b). On appeal, Rosengreen argues for the first time that the evidence was insufficient to establish reasonable grounds because the arresting officer failed to strictly comply with Utah Highway Patrol field sobriety testing standards(3) and, therefore, the test results were unreliable. See State v. Homan, 732 N.E.2d 952, 955 (Ohio 2000) (holding that when using field sobriety tests to establish probable cause to arrest an individual for driving under the influence, the administration of those field sobriety tests must strictly comply with standardized field sobriety testing procedures). At trial, Rosengreen argued that the horizontal gaze nystagmus (HGN) and the one-leg stand tests could not be used to establish reasonable grounds for his arrest because the tests were not performed in accordance with Utah Highway Patrol standards. He further argued that "two out of the three tests" given "were clearly not wrong" and "therefore, that's not enough to form probable cause to arrest." However, at trial, Rosengreen did not argue that strict compliance with the standards was required. "We generally will not address arguments made for the first time on appeal." State v. Strausberg, 895 P.2d 831, 833 n.2 (Utah Ct. App. 1995); see State v. Peterson, 841 P.2d 21, 24-25 (Utah Ct. App. 1992) (declining to review allegation that was "not specifically or particularly" asserted before the trial court).

Rosengreen concedes that viewing the evidence in the light most favorable to the trial court's findings, see State v. Layman, 953 P.2d 782, 784 n.1 (Utah Ct. App. 1998), establishes that the arresting officer substantially complied with the field sobriety testing standards. Cf. State v. Garcia, 965 P.2d 508, 515-16 n.4 (Utah Ct. App. 1998) (noting if violation of regulations governing breath instrument calibration and testing procedures "seriously undermines the accuracy of . . . a defendant's test results, the State will not be able to establish the foundation necessary to have the defendant's test results admitted").(4)

Even if we were to adopt the strict compliance standard, the trial court based its ruling not on the test results, but on the arresting officer's testimony that Rosengreen was incapable of safely operating a vehicle based on his performance on the three field sobriety tests, the odor of alcohol on his breath, his admission that he consumed two to three beers, and his chattiness.(5) The trial court also emphasized that the video tape indicated Rosengreen had difficulty maintaining his balance and swayed during and between the field sobriety tests. We conclude there is sufficient, reliable evidence to support the trial court's determination that the arresting officer had reasonable grounds to believe that Rosengreen drove under the influence to the degree that he was incapable of safely operating a vehicle and that revocation of his license for refusing to submit to a breathalyzer test was proper.(6)

Rosengreen next argues that the trial court erred in ruling that the arresting officer properly served him with "immediate notice of the Driver License Division's intention to revoke" his driver license. Utah Code Ann. § 41-6-44.10(2)(b). We agree with Rosengreen that the trial court erred by ruling that the service of the initial citation was sufficient where that citation was incorrect and the arresting officer issued a second citation and destroyed the initial citation, albeit at Rosengreen's request. However, the arresting officer's testimony shows that service of the second citation was sufficient. See Mabus v. Blackstock, 1999 UT App 389,¶12, 994 P.2d 1272 (noting "the [Driver License] Division may introduce . . . the officer's testimony that he or she effected written service of immediate notice and basic information or a copy of the immediate notice and basic information showing timely service to the arrestee" to "insulate[] . . . [the revocation] from reversal on appeal" (quotation and citation omitted)). The arresting officer testified that he presented the citation to Rosengreen while he was being booked and the citation was placed with his personal effects. Moreover, in his brief, Rosengreen indicates that he had a hearing before the Division.(7)

Accordingly, we affirm the revocation of Rosengreen's license.

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James Z. Davis, Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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William A. Thorne Jr., Judge

1. Although Utah Code Ann. § 41-6-44.10 (Supp. 2002) was amended during the proceedings in this case, the changes are not material for purposes of our analysis. We cite the current version for convenience.

2. The Driver License Division (Division) agrees that section 41-6-44.10(2) requires reasonable grounds for arrest to support the revocation of Rosengreen's license after he refused to submit to a breathalyzer test.

3. At trial the Division stipulated to standards used by "Utah troopers."

4. At trial, Rosengreen argued that during the walk-and-turn test, the arresting officer failed to instruct him how to turn and, therefore, there were only two, as opposed to the typical three, clues indicated on the arresting officer's report. However, he did not otherwise challenge the results of that test. Rosengreen argues on appeal that the arresting officer erred by using an imaginary line. However, the video tape indicates the arresting officer permitted Rosengreen to use a shadow as a line. Moreover, the standards indicate an imaginary line may be used.

The video tape also indicates Rosengreen had difficulty following the instructions and counting during the one-leg stand test before the arresting officer allegedly invalidated the test by telling Rosengreen to look at his foot. The video tape further shows that part of the HGN test was done a second time and that the arresting officer moved the pen more slowly.

5. Evidence upon which the arresting officer could adduce probable cause to support his arrest of Rosengreen for driving under the influence may not necessarily be admissible at trial.

6. Rosengreen also argues the trial court erred by concluding that "field sobriety tests are not an exact science and call for the opinion of the officer looking at the overall circumstances." While the trial court offered this conclusion in its order, Rosengreen did not make any argument with regard to the scientific nature of the tests at trial. Moreover, on appeal Rosengreen fails to offer any authority or explain why this conclusion was improper. Accordingly, we decline to consider this argument. See Utah R. App. P. 24(a)(9); State v. Garner, 2002 UT App 234,¶8, 52 P.3d 467.

7. Furthermore, Rosengreen effectively waived his argument that he had not received proper notice of his right to obtain a hearing before the Division when he requested and attended a hearing before the Division.