OGDEN — Some in Utah’s criminal justice system expect more DUI convictions when the nation’s toughest blood alcohol limit for impaired driving takes effect Sunday.
“There may be the same number of arrests ... but we may see a greater percentage of convictions,” said Marshall Thompson, director of the Utah Sentencing Commission.
The Legislature appropriated an extra $248,000 for the courts “in anticipation of an increase in case filings and trial challenges” when defendants test between .05 percent and the old limit, .08, said court system spokesman Geoff Fattah.
In fiscal year 2018, 1,949 misdemeanor DUI cases were filed in Utah’s district courts, Fattah said. That doesn’t count many more filed in justice courts.
According to the Utah Highway Safety Division, 54,402 arrests for DUI, about 30 a day, were made in the state over the last five years.
Josh Baron, a criminal defense attorney and former city prosecutor, said it’s “pretty speculative” whether the tougher limit will prevent deaths or injuries.
“If it accomplishes this, great,” he said. “But if it’s only more DUIs and more business for the courts, it’s probably not good for anybody but the people in the industry.”
The bigger question may be: Are drivers ready?
“It will be really interesting to see how it affects thinking and behavior,” Thompson said. “There are some anecdotal indications it will have a positive effect, (that) some people out there have just decided not to drive ... they may choose to behave differently and hopefully more safely.”
Baron said he hopes more people will be less likely to drink and drive, “but if I had to predict, it seems some people are ... going to keep doing what they’re going to do.”
Local police agencies say it will be mostly business as usual in DUI enforcement, because the legal determination of unlawful impairment happens after suspects are arrested.
“We are not so worried about the number as we are impairment,” said Ogden Police Sgt. Cameron Stiver.
To make an arrest, an officer must find probable cause that a driver is impaired, such as failure of the roadside tests and indication of alcohol consumption via a roadside breath test machine. Those on-the-spot breath tests are not admissible in court, Stiver said.
“Those portable breath tests are only there to confirm alcohol,” said Sgt. Nealy Adams of the Weber County Sheriff’s Office.
After an arrest, the driver then undergoes blood or breath tests at the jail. Those results then can be used in court by prosecutors. Under the new law, impairment per se exists with levels of .05 or higher.
“When we request a chemical test, that’s for the attorneys,” Adams said. “For us, there’s not a lot that changes.”
Adams said patrol officers are kept abreast of changes in state and federal laws and case law and receive updated training in DUI enforcement procedures as warranted.
If a driver smells of alcohol but passes the roadside dexterity tests and the officer gets “zero clues” of impairment, a breath test still may be administered, Stiver said.
“If you are right on the border of an .05, we might just tell you that you need to get a ride home,” he said. “We won’t let you drive any more that night.”
Stiver noted National Highway Traffic Safety Administration studies show that even small amounts of alcohol can cause impairment.
One NHTSA report said that by .04, “all measures of impairment that are statistically significant are in the direction of degraded performance. The data provides no evidence of a BAC below which impairment does not occur.”
“Honestly, I wish it was at zero,” Stiver said. “Drink or not drink.”
Stiver said he thinks Utah’s new law will be a test case, that “you’re going to see other states following suit and this will be the standard for the nation.”
That would take the wind out of arguments that the new law will hurt Utah’s tourism industry, he said.
A not-a-drop law would mean fairness for drivers, Baron said.
“I almost think a zero limit would be better, because no one knows what their blood alcohol level is,” Baron said.
“These are arbitrary lines,” he said, referring to the .05 limit and earlier provisions. “There really is no safe ‘drink this much and you’re OK’ calculator. You’re just at risk if you drink at all and drive.”
Baron added, “The problem with the DUI law is there’s no intent element. You may think you can comply with the law, but you just happen to be over the limit, but you are treated the same as if you had voluntarily driven while impaired.”