State v. Cook , 830 Utah Adv. Rep. 20 ( 2017 )


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    2017 UT App 8
    THE UTAH COURT OF APPEALS
    STATE OF UTAH,
    Appellee,
    v.
    ELIZABETH VICTORIA COOK,
    Appellant.
    Memorandum Decision
    No. 20150847-CA
    Filed January 12, 2017
    Fifth District Court, Cedar City Department
    The Honorable Thomas M. Higbee
    No. 155500004
    Matthew D. Carling, Attorney for Appellant
    Scott Garrett and Chad E. Dotson, Attorneys
    for Appellee
    JUDGE GREGORY K. ORME authored this Memorandum Decision,
    in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
    concurred.
    ORME, Judge:
    ¶1     Elizabeth Victoria Cook appeals her conviction for driving
    under the influence of alcohol with a passenger under sixteen
    years of age, a class A misdemeanor. See Utah Code Ann. §§ 41-
    6a-502(1)(a), -503(1)(b)(ii) (LexisNexis 2010). Cook raises three
    claims on appeal, none of which are meritorious. We affirm.
    ¶2     While responding to an unrelated report of an abandoned
    vehicle, an officer observed an ATV traveling at high speed on a
    State v. Cook
    snow-covered road.1 The officer saw three individuals on the
    ATV: a ten-year-old child in the front, Cook in the middle, and
    an eighteen-year-old male in the back. The officer also noticed
    that Cook was holding a beer can in one hand and the
    handlebars with the other. The officer pulled the ATV over.
    ¶3     When the officer approached the ATV, the beer can had
    disappeared. Although she denied having consumed alcohol
    that day, Cook smelled of alcohol, behaved belligerently, and
    slurred her words. Eventually, the officer found an open, half-
    consumed can of beer in the snow, which the male told him
    belonged to Cook. The officer then found another can of beer in
    Cook’s pocket.
    ¶4     After being arrested and transported to the Iron County
    Jail, Cook submitted to standard sobriety tests and a chemical
    breath test. Cook failed the sobriety tests and had a breath
    alcohol concentration (BAC) of .119 grams, well over the legal
    limit of .08. See Utah Code Ann. § 41-6a-502(1)(a) (stating that
    ‚*a] person may not operate or be in actual physical control of a
    vehicle‛ if a test reveals that a person ‚has a blood or breath
    alcohol concentration of .08 grams or greater‛). Cook was
    charged with driving under the influence of alcohol with a
    passenger under the age of sixteen. Following a bench trial,
    Cook was convicted and sentenced.
    ¶5     Cook makes three arguments on appeal. First, she argues
    that she was not in ‚actual physical control‛ of the ATV because
    the child was driving. ‚*W+e review the trial court’s conclusion
    1. ‚On appeal from a bench trial, we view the evidence in a light
    most favorable to the trial court’s findings, and therefore recite
    the facts consistent with that standard.‛ Lake Philgas Service v.
    Valley Bank & Trust Co., 
    845 P.2d 951
    , 953 n.1 (Utah Ct. App.
    1993).
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    State v. Cook
    that [Cook] was in actual physical control of the vehicle for
    correctness.‛ See In re C.L., 2004 UT App 229U, para. 1. Second,
    she argues that the trial court erroneously admitted the results of
    her breathalyzer test. ‚We review a trial court’s decision to
    admit or preclude evidence‛ for an abuse of discretion. State v.
    Vialpando, 
    2004 UT App 95
    , ¶ 8, 
    89 P.3d 209
    . Third, Cook claims
    that her trial counsel rendered constitutionally ineffective
    assistance. ‚An ineffective assistance of counsel claim raised for
    the first time on appeal presents a question of law, which we
    review for correctness.‛ State v. Wyman, 
    2013 UT App 93
    , ¶ 5, 
    300 P.3d 1285
     (citation and internal quotation marks omitted).
    ¶6     In Utah, a person may not legally be in ‚actual physical
    control of a vehicle‛2 if the person ‚has sufficient alcohol in the
    person’s body that a subsequent chemical test shows that the
    person has a blood or breath alcohol concentration of .08 grams
    or greater at the time of the test.‛3 Utah Code Ann. § 41-6a-
    502(1)(a) (LexisNexis 2010) (emphasis added). Cook first claims
    that she was not in ‚actual physical control‛ of the ATV because
    2. The term ‚motor vehicle‛ includes ‚off-highway vehicle*s+,‛
    such as ATVs. See Utah Code Ann. § 41-22-2(11)(b) (LexisNexis
    2010).
    3. Cook asserts that the State was required to establish that she
    had a BAC above .08 grams at the time she was in ‚actual
    physical control‛ of the vehicle. But this is incorrect. Utah’s DUI
    statute ‚plainly does not require the State to establish that a
    person had a BAC of .08 or greater at the time he or she operated
    or controlled a vehicle.‛ State v. Manwaring, 
    2011 UT App 443
    ,
    ¶ 34, 
    268 P.3d 201
    . Rather, the State must establish that a
    defendant had a BAC of .08 grams or greater ‚at the time of the
    subsequent chemical test.‛ 
    Id.
     This is a reasonable statutory
    provision given the tendency of an alcohol concentration to
    dissipate over time.
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    State v. Cook
    the child was driving. We consider whether Cook was in actual
    physical control of the vehicle by examining ‚the totality of the
    circumstances.‛ See Vialpando, 
    2004 UT App 95
    , ¶ 22 (citation and
    internal quotation marks omitted).
    ¶7     In its ordinary sense, the term ‚actual physical control‛
    means ‚existing or present bodily restraint, directing influence,
    domination or regulation.‛ State v. Bugger, 
    483 P.2d 442
    , 443
    (Utah 1971) (citation and internal quotation marks omitted). ‚A
    person need not actually move, or attempt to move, a vehicle in
    order to have actual physical control; the person only needs to
    have ‘the apparent ability to start and move the vehicle.’‛ State v.
    Barnhart, 
    850 P.2d 473
    , 477 (Utah Ct. App. 1993) (quoting Garcia
    v. Schwendiman, 
    645 P.2d 651
    , 654 (Utah 1982)). Because ‚there is
    a distinction between operating a vehicle and having actual
    physical control of a vehicle, a person need not operate, or
    attempt to operate, a vehicle before he or she may be found to be
    in actual physical control.‛ 
    Id. at 479
    .
    ¶8      Cook claims that she had her hands on the handlebars for
    the sole purpose of protecting the ten-year-old while the vehicle
    came to a halt. Even if we assume that this is true and that Cook
    had some similar purpose when the officer saw her speeding
    along with one hand on the handlebars, Cook nonetheless had
    actual physical control of the vehicle. According to the child’s
    trial testimony, Cook assisted in steering by guiding the child’s
    shoulders. The child testified that Cook helped her steer ‚at
    first‛ because she ‚almost crashed.‛ Thus, we conclude, under
    the totality of the circumstances, that Cook’s conduct qualified as
    actual physical control over the vehicle even if the child was
    driving.
    ¶9    Second, Cook contends that the trial court erroneously
    admitted the breathalyzer test results, arguing that the officer
    improperly administered the test. Before presenting evidence of
    breathalyzer results, the State must demonstrate that
    20150847-CA                     4                  
    2017 UT App 8
    State v. Cook
    (1) the [breathalyzer] machine had been properly
    checked by a trained technician, and that the
    machine was in proper working condition at the
    time of the test; (2) the test was administered
    correctly by a qualified operator; and (3) a police
    officer observed the defendant during the fifteen
    minutes immediately preceding the test to ensure
    that the defendant introduced nothing into his or
    her mouth during that time.
    State v. Vialpando, 
    2004 UT App 95
    , ¶ 14, 
    89 P.3d 209
    .
    ¶10 Cook argues that the requirement for a fifteen-minute
    observation period was not met, because the officer used his
    phone to start the fifteen-minute observation period and used
    the breathalyzer to mark the end of it. Thus, according to Cook,
    the two separate devices may not have been synchronized and
    the requisite minimum observation period may not have been
    satisfied. The administering officer’s trial testimony, credited by
    the trial court, dispels this argument. The officer explained that
    the breathalyzer uses a fifteen-minute timer that starts when the
    officer enters the necessary information. Here, the officer
    testified that the machine was working properly when he
    entered the necessary information, that he observed more than
    the requisite waiting period as marked by the breathalyzer, and
    that he properly administered the test. Accordingly, we conclude
    that the trial court did not abuse its discretion in admitting the
    breathalyzer test results.
    ¶11 Finally, Cook argues that her trial counsel rendered
    constitutionally ineffective assistance by failing to more
    thoroughly develop the motion to suppress. ‚To establish
    ineffective assistance of counsel, a defendant must demonstrate
    both that counsel’s performance was deficient . . . and that
    counsel’s deficient performance was prejudicial.‛ State v. Perry,
    
    2009 UT App 51
    , ¶ 11, 
    204 P.3d 880
     (citation and internal
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    2017 UT App 8
    State v. Cook
    quotation marks omitted). ‚Failing to file a futile motion does
    not constitute ineffective assistance of counsel.‛ State v. Heywood,
    
    2015 UT App 191
    , ¶ 48, 
    357 P.3d 565
    .
    ¶12 Cook’s trial counsel filed a pretrial motion to suppress,
    claiming that the breathalyzer results were inadmissible. And at
    trial, counsel objected to the breathalyzer results because the
    officer had purportedly used two separate timepieces when he
    administered the test. Cook claims that her trial counsel was
    ineffective because he failed to thoroughly articulate that
    objection in the pretrial motion to suppress. Because we
    conclude that the admissibility requirements regarding the
    breathalyzer results were satisfied, a more fully developed
    motion to suppress, premised on this theory, would not have
    succeeded. Therefore, Cook’s trial counsel was not ineffective
    when he failed to more fully develop a futile argument in the
    motion to suppress.
    ¶13    Affirmed.
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    2017 UT App 8
                                

Document Info

Docket Number: 20150847-CA

Citation Numbers: 2017 UT App 8, 391 P.3d 391, 830 Utah Adv. Rep. 20, 2017 Utah App. LEXIS 9, 2017 WL 128247

Judges: Orme, Voros, Roth

Filed Date: 1/12/2017

Precedential Status: Precedential

Modified Date: 11/13/2024