State v. Laursen ( 1978 )

WILKINS, Justice

(concurring in result with comments):

I concur in the result, adding these comments.

First, defendant was not arrested at the scene of the accident and his blood alcohol level was tested more than two hours later at a hospital. The expert testimony concerning the defendant’s .19 blood alcohol content at the time of the accident was based on a .15 blood alcohol content measured at the hospital.

Second, I read Utah’s criminal episode statute¹ differently from the main opinion. It states in relevant part:

. however, when the same act of a Defendant under a single criminal episode shall establish offenses which may be punished in different ways under different provisions of this code, the act shall be punishable under only one such provision. [Emphasis added.]

In this case defendant committed only one act (i. e., while under the influence of intoxicating liquor, he “cause(d) the death of another”).² Sec. 76-1-402, ante, is inapplicable here because defendant’s offenses are punished under the same provisions of the code, not different provisions which this section prohibits.

1 . Utah Code Ann., 1953, Sec. 76-1-402, as amended.

2 . Utah Code Ann., 1953, Sec. 76-5-207, as amended.