Wilde v. Third Circuit Court of Utah

PER CURIAM:

The plaintiff and appellant here filed a “Complaint for Extraordinary Writ” in the district court, Morgan County, to require the circuit court permanently to stay an action pending in that court charging Wilde with violation of U.C.A., 1953, § 41-6-44 (driving under the influence), on the grounds that a motion to dismiss made by Wilde in the circuit court was erroneously denied. The motion claimed the results of a breathalyzer test would be inadmissible as evidence since the ampoules used in the test admittedly were unavailable. The petition for the writ at best was for the purpose of requiring the lower court to grant a motion to dismiss the case, which, if ordered would be a “dismissal” calling for an appeal by the prosecution only under U.C.A., 1953, § 77-35-26(c)(l). As to Wilde, it would not have been appealable, except under U.C.A., 1953, § 77-35-26(b)(3), the terms of which have not been pleaded nor followed. Extraordinary writs were not intended to be used as substitutes for appeal or to circumvent the formalities required for an appeal. The plaintiff’s petition was interlocutory in nature and failed to state a cause for the relief prayed. The purported appeal from the district court’s refusal to entertain the petition is therefore dismissed as being improvidently pursued.