State v. Salgado

2018 UT App 139THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MIRIAM SALGADO,
Appellant.
Opinion
No. 20160104-CA
Filed July 12, 2018
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 151401656
Lori J. Seppi and Heather J. Chesnut, Attorneys
for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
HAGEN, Judge:
¶1 Miriam Salgado appeals her convictions of one count of
interference with an arresting officer and one count of driving
under the influence (DUI). Salgado challenges the sufficiency of
the evidence supporting her DUI conviction. Additionally, she
contends that the trial court provided two jury instructions that
improperly commented on the evidence. Finally, she argues that
the trial court erred in declining to instruct the jury on a
minimum-speed violation as a lesser included offense of DUI.
We affirm.
State v. Salgado
BACKGROUND 1
The Traffic Stop
¶2 While patrolling I-15 near 9000 South around 2 p.m., a
Utah Highway Patrol officer (the officer) noticed a car traveling
in the middle northbound lane at speeds “considerably slower
than the rest of traffic,” creating a traffic hazard for vehicles that
had to drive around it. Because the car had its hazard lights on,
the officer thought it might be having mechanical problems and
that the driver—later identified as Salgado—was attempting to
merge over to the shoulder of the freeway. To help Salgado
safely pull over, the officer activated his patrol vehicle’s rear
emergency lights and blocked the two right lanes of traffic.
Instead of pulling over, Salgado continued to drive at
forty-five miles per hour (mph) for a while, before eventually
increasing her speed to sixty-five mph, five mph below the
posted maximum speed limit of seventy mph.
¶3 When Salgado failed to pull over, the officer pulled up
alongside the driver’s side of her car and turned on his siren to
try to get her attention. She did not respond. Instead, according
to the officer, she stared “kind of to the right and ahead.”
Thinking Salgado may be hearing impaired, the officer drove to
the passenger’s side of the vehicle and chirped his siren, but she
continued to focus straight ahead, avoiding eye contact.
¶4 At this point, the officer grew concerned that Salgado was
driving while impaired. The officer had nearly ten years of
experience with the Utah Highway Patrol and had completed his
standardized field sobriety instructor certification as well as his
drug recognition expert (DRE) certification, although his DRE
1. We recite the facts in the light most favorable to the verdict,
presenting conflicting evidence only as necessary to understand
the issues on appeal. See State v. Bond, 2015 UT 88, ¶ 3 n.2, 361
P.3d 104.
20160104-CA 2 2018 UT App 139State v. Salgado
certification was no longer current. Based on his training and
experience, he understood that “it is common with people that
are under the influence of . . . alcohol or drugs [to be] so focused
on staying in their lane or what’s right ahead of them, that they
really don’t know what’s going on around them.”
¶5 In an attempt to get Salgado’s attention, the officer turned
on all of his patrol vehicle’s emergency equipment, moved in
front of Salgado’s car, and motioned with his hand for her to
pull over. Salgado moved over one lane but continued driving.
In response, the officer left the emergency equipment on and
fluctuated his distance from Salgado’s car, trying “to do
anything [he] could to get [her] attention.”
¶6 Salgado began to drive on the skip lines that divide the
freeway lanes, prompting the officer to think she was going to
take the 7200 South exit. She did not. “Thinking there might be a
medical condition or . . . some impairment,” the officer notified
dispatch of the situation. Responding to that call, a detective in
the area began following Salgado and the officer. According to
the officer, at this point, Salgado “was not driving recklessly, she
just was not responding to anything.”
¶7 Salgado maintained near-freeway speeds until she
approached 4500 South where traffic slowed due to an unrelated
collision. As traffic slowed to approximately five to ten mph, the
officer used his public address system to tell Salgado “to pull
over to the right.” The officer thought Salgado had finally
noticed him because she motioned with her hand, but again she
continued driving. Finally, when traffic completely stopped, the
officer exited his patrol vehicle, knocked on Salgado’s window,
and instructed her to pull over. As a safety precaution, the
officer and detective had approached the car with weapons
drawn. With Salgado finally stopped on the side of the road, the
officer ordered her out of the car and handcuffed her.
¶8 When asked why she had not stopped, Salgado initially
claimed that she never saw the officer but later stated that “she
didn’t believe that she needed to stop.” When talking to Salgado,
20160104-CA 3 2018 UT App 139State v. Salgado
the officer noticed that she was confused as to why she was
being stopped and that her eyelids were very droopy. Because
the officer knew, through his training and experience, that
certain illegal drugs and prescribed medications cause droopy
eyelids, he asked Salgado whether she had taken anything.
Salgado stated that she had taken four different medications at
5 a.m. that morning, including tramadol, a central nervous
system depressant with effects similar to alcohol. Based on this
admission and his observation of Salgado’s “intent focus straight
ahead, which is common with people that are under the
influence,” the officer was concerned about her ability to drive
and consequently began a DUI investigation.
¶9 The investigation included three standardized field
sobriety tests: the horizontal gaze nystagmus test, 2 the nine-step
walk-and-turn, and the one-leg stand. The officer testified that
law enforcement use these field sobriety tests to assess a driver’s
balance, coordination, and ability between divide his or her
attention to more than one task. During each test, an officer
looks for “clues” that the driver is impaired by drugs and/or
alcohol, such as jerking eyes, inability to maintain balance, and
failure to follow instructions. More clues equate to “more signs
of impairment.”
¶10 Before the officer administered the first test, he asked
Salgado whether she suffered from any current injuries or
illnesses that might affect the test results. Because Salgado said
she had previously undergone brain surgery, the officer
examined her eyes to check for abnormalities that would
indicate head trauma, but he found none. Her pupils were the
same size, they were tracking equally, and there was no resting
eye nystagmus. Salgado denied having any other injury that
2. According to the officer, an individual who is under the
influence of drugs or alcohol can have nystagmus, which is “an
involuntary jerking of the eye.”
20160104-CA 4 2018 UT App 139State v. Salgado
could impair her ability to perform the tests, such as back, knee,
or ankle problems.
¶11 Confident the results of the horizontal gaze nystagmus
test would be accurate, the officer conducted the three-part test.
During the first part of the test, the officer noticed that “there
was a lack of smooth pursuit” in both of Salgado’s eyes,
resulting in “two clues.” When the officer asked Salgado to look
as far left and right as she could, he observed additional signs of
nystagmus, which amounted to two more clues. During the final
part of the test, however, Salgado showed no additional signs of
nystagmus. All told, Salgado demonstrated four clues on this
test, which, according to the officer, is a significant indication
that an individual is “either over the legal limit of alcohol or
impaired by drugs.”
¶12 The officer next administered the nine-step walk-and-turn
test, looking for up to eight clues. He later testified that studies
have demonstrated that observing two clues during this test is a
significant indication that an individual is impaired. Salgado
exhibited six clues—failing to maintain balance during the
instruction phase of the test, missing heel to toe several times,
stepping off the line several times, taking the wrong number of
steps the first time, taking the wrong number of steps the second
time, and performing an improper turn.
¶13 Finally, the officer asked Salgado to perform the one-leg
stand, a test with four potential clues. The officer observed two
clues when she put her foot down twice and when she swayed
during the test.
¶14 The officer gave all of the test instructions in English.
Although Salgado is a native Spanish speaker, she never asked
for an interpreter or otherwise indicated that she did not
understand. The officer testified that he did not believe there
was a language barrier sufficient to necessitate a translator,
because Salgado responded appropriately to the questions that
he asked her and she confirmed that she understood.
20160104-CA 5 2018 UT App 139State v. Salgado
¶15 The officer administered a breath test, which showed that
Salgado had not consumed alcohol. Nevertheless, based on his
training and experience, his observations of Salgado’s driving,
and the results of the field sobriety tests, the officer arrested
Salgado for DUI. A subsequent chemical test confirmed the
presence of tramadol in Salgado’s system.
¶16 During a post-arrest interview that same day, the officer
asked Salgado “where she was coming from, where she was
going, [and] what she’d been doing.” Salgado was again able to
respond to all of the officer’s questions. She told him that she
was having problems with her tire and that she had been driving
from Orem to her mechanic in Salt Lake City.
¶17 The State ultimately charged Salgado with one count of
failure to respond to an officer’s signal to stop, a third degree
felony, see Utah Code Ann. § 41-6a-210 (LexisNexis 2014), and
one count of DUI, a class B misdemeanor, see id. § 41-6a-502.
Procedural History
¶18 The case proceeded to trial. After the close of the State’s
case, Salgado moved for a directed verdict on the DUI charge,
contending that there was insufficient evidence to prove she was
not “able to safely operate the motor vehicle.” Specifically,
Salgado argued that the State’s only allegation was that “she was
moving slowly with hazard lights on . . . . And [that] this by
itself is not enough.” In ruling on the motion, the judge stated, “I
think there is sufficient evidence that the jury could look at it
and determine that . . . the facts support a finding of guilt”
because “[h]er eyes were drooping” and there were “the clues
that [the officer] talked about.” The trial continued, and Salgado
did not renew her motion for a directed verdict.
¶19 At the close of the evidence, the court heard arguments
from each side regarding proposed jury instructions. Salgado
objected to two of the State’s requested instructions, later
numbered as Instructions 18 and 19. Instruction 18 listed
“relevant factors” for “determining whether alcohol and/or
20160104-CA 6 2018 UT App 139State v. Salgado
drugs rendered defendant incapable of safely operating a
vehicle.” Salgado argued that such an instruction “emphasizes
some pieces of evidence over other pieces of evidence and
creates a situation . . . of the Court commenting on what’s
important and what isn’t in [the jury’s] factual determination.”
The court overruled Salgado’s objection, explaining that “there’s
no instruction that could give all of the relevant factors” and that
Salgado was not precluded from arguing any other factors that
might be relevant.
¶20 Instruction 19 included a sentence interpreting the statute,
which explained that “tak[ing] drugs as directed by a physician
pursuant to a prescription . . . does not excuse the defendant’s
liability for DUI.” Salgado objected only to this sentence,
contending that it was an “incorrect” interpretation of the statute
and was neither “supported” nor “warranted.” Because the
court believed it was not “inappropriate” to include this
sentence, it overruled Salgado’s objection.
¶21 Salgado requested two lesser included offense
instructions. The trial court granted her request to instruct the
jury on interference with an arresting officer as a lesser included
offense of failure to respond to an officer’s signal to stop. She
also requested a jury instruction on minimum-speed violation as
a lesser included offense of DUI. The judge declined her request,
stating, “I don’t believe that a minimum speed violation is a
lesser included offense as defined by case law.”
¶22 The jury convicted Salgado of one count of interference
with an arresting officer, a class B misdemeanor, see Utah Code
Ann. § 76-8-305 (LexisNexis 2017), and one count of driving
under the influence of alcohol and/or drugs, a class B
misdemeanor, see id. § 41-6a-502 (2014). Salgado appeals.
ISSUES AND STANDARDS OF REVIEW
¶23 Salgado raises several issues on appeal. First, Salgado
contends that her DUI conviction must be overturned because
20160104-CA 7 2018 UT App 139State v. Salgado
the State presented insufficient evidence to prove she was
impaired by drugs to such a degree that she was incapable of
safely operating her vehicle. “In evaluating sufficiency of the
evidence claims, we review the evidence and all inferences
which may reasonably be drawn from it in the light most
favorable to the verdict.” State v. Robertson, 2018 UT App 91, ¶ 20
(quotation simplified). “We will reverse the jury’s verdict only
when the evidence, so viewed, is sufficiently inconclusive or
inherently improbable that reasonable minds must have
entertained a reasonable doubt that the defendant committed the
crime of which he was convicted.” State v. Bryson, 2018 UT App
111, ¶ 9 (quotation simplified).
¶24 Second, Salgado contends that Instructions 18 and 19
improperly commented on the evidence by incorrectly
instructing the jury on determining drug impairment. “A
challenge to a jury instruction as incorrectly stating the law
presents a question of law, which we review for correctness.”
State v. Prawitt, 2011 UT App 261, ¶ 5, 262 P.3d 1203 (quotation
simplified). But “[the] precise wording and specificity [of jury
instructions] is left to the sound discretion of the trial court.”
State v. Frausto, 2002 UT App 259, ¶ 18, 53 P.3d 486.
¶25 Third, Salgado contends that the trial court erred in
denying her request to instruct the jury on minimum-speed
violation as a lesser included offense of DUI. “A trial court’s
refusal to grant a lesser included offense instruction is a question
of law, which we review for correctness.” 3 State v. Norton, 2018
UT App 82, ¶ 26 (quotation simplified).
3. Salgado also contends the cumulative effect of the trial errors
warrants reversal. “Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Carvajal, 2018 UT App 12, ¶ 16, 414 P.3d 984 (quotation
simplified). However, where, as here, we conclude that the
(continued…)
20160104-CA 8 2018 UT App 139State v. Salgado
ANALYSIS
I. Sufficiency of the Evidence
¶26 Salgado contends that we should reverse her DUI
conviction “because the State presented insufficient evidence to
prove beyond a reasonable doubt that [she] was impaired by
drugs” to a degree that rendered her incapable of safely
operating her vehicle. As an initial matter, we must address the
State’s argument that Salgado failed to preserve the issue she
asserts on appeal. According to the State, Salgado did not
specifically raise the issue or support her argument with relevant
legal authority in her motion for a directed verdict. Because we
conclude that Salgado preserved the issue, we next address
whether the trial court erred in submitting the charge to the jury.
A. Preservation
¶27 Absent an exception to the preservation requirement,
“[w]e generally do not hear [issues] on appeal that were not
presented to the [trial] court.” State v. Prater, 2017 UT 13, ¶ 27,
392 P.3d 398. An issue is preserved for appeal “when it has been
presented to the [trial] court in such a way that the court has an
opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (quotation simplified). To provide the court with such
an opportunity, the party asserting error must specifically raise
the issue in a timely fashion and must introduce supporting
evidence and relevant legal authority. Id.¶28 Here, Salgado moved for a directed verdict on the DUI
charge at the close of the State’s case, arguing that there was
insufficient evidence to prove that she was unable “to safely
(…continued)
issues asserted on appeal do not constitute error or are otherwise
harmless, the cumulative error doctrine is inapplicable. See State
v. Wright, 2013 UT App 142, ¶ 44, 304 P.3d 887.
20160104-CA 9 2018 UT App 139State v. Salgado
operate the motor vehicle” because, according to Salgado, “[t]he
sole allegation [was that] she was moving slowly with hazard
lights on. No other reckless behavior was observed.” On appeal,
Salgado contends that the State failed “to prove that [she] was
impaired by tramadol to a degree that rendered her incapable of
safely operating a vehicle.” In support of this contention,
Salgado argues that “the State’s proof that [she] was impaired by
tramadol was too speculative to support a conviction” where
(1) the State’s expert “could not say that Salgado had enough of
the drug in her body to create a therapeutic effect let alone an
impairing effect,” and (2) the arresting officer “was not trained
to distinguish drug impairment from medical conditions or
innocent behavior.” Although Salgado did not make these two
specific arguments before the trial court, “issues must be
preserved, not arguments for or against a particular ruling on an
issue raised below.” See State v. Garcia, 2017 UT 53, ¶ 51
(quotation simplified).
¶29 Furthermore, it is clear from the record that the court not
only understood that Salgado was challenging the State’s
evidence of impairment but also had an opportunity to rule on
that precise issue. The trial court held that “there’s sufficient
evidence that the jury could [find] . . . that there’s such
impairment there that she’s incapable. Her eyes were drooping.
We have . . . the clues that [the officer] talked about.” We
therefore conclude that Salgado preserved for appeal her
challenge to the sufficiency of the evidence supporting the DUI
conviction.
B. Denial of Directed Verdict
¶30 “A defendant must overcome a substantial burden on
appeal to show that the trial court erred in denying a motion for
[a] directed verdict.” State v. Gonzalez, 2015 UT 10, ¶ 27, 345 P.3d
1168. A trial court must deny a motion for a directed verdict at
the close of the State’s case if it determines that the State “has
established a prima facie case against the defendant by
producing believable evidence of all the elements of the crime
20160104-CA 10 2018 UT App 139State v. Salgado
charged.” State v. Montoya, 2004 UT 5, ¶ 29, 84 P.3d 1183(quotation simplified). We will uphold that denial if “we
conclude that some evidence exists from which a reasonable jury
could find that the elements of the crime had been proven
beyond a reasonable doubt.” Id. (quotation simplified). On
review, the evidence and all inferences that may reasonably be
drawn from it are viewed in the light most favorable to the State.
See id. Because the State presented some evidence on each
element of DUI, we conclude that the trial court did not err in
submitting the charge to the jury.4
¶31 To establish a prima facie case for DUI and survive a
motion for a directed verdict, the State had to present believable
evidence that Salgado operated or was in actual physical control
of a vehicle while she was under the influence of tramadol to a
degree that rendered her incapable of safely operating that
vehicle. See Utah Code Ann. § 41-6a-502(1)(b) (LexisNexis 2014).
It is undisputed that Salgado had operated a vehicle and that she
had taken tramadol on the day in question. On appeal, Salgado
challenges the State’s proof only as it relates to impairment, i.e.,
her ability to safely operate her vehicle. In particular, Salgado
contends that the State’s proof is based on speculation because
(1) its expert “could not say that Salgado had enough of the drug
4. Salgado argues that “the insufficiency of the State’s evidence
becomes even starker” when the defense evidence is also
considered. Salgado acknowledges that she failed to renew her
motion for a directed verdict at the close of the evidence, but she
argues that the trial court plainly erred when it did not dismiss
the DUI charge sua sponte after the presentation of the defense
case. For the reasons explained infra ¶¶ 31–37, we conclude that
the State presented sufficient evidence to support each element
of the DUI charge. Consideration of the conflicting evidence
presented by the defense would not alter the analysis, because
weighing conflicting evidence and witnesses’ credibility is
squarely within the province of the jury. See State v. Prater, 2017
UT 13, ¶ 31, 392 P.3d 398.
20160104-CA 11 2018 UT App 139State v. Salgado
in her body to create a therapeutic effect let alone an impairing
effect,” and (2) the arresting officer “was not trained to
distinguish drug impairment from medical conditions or
innocent behavior.”
¶32 At trial, the State called an expert witness who had tested
Salgado’s blood sample. The expert confirmed that Salgado had
ingested tramadol, testifying that her test results were
“positive.” He explained that a positive result shows whether
the amount of tramadol in Salgado’s system fell within the
detection range but not whether that amount was impairing.
According to the expert, even if the results showed the precise
amount of tramadol in Salgado’s system, a DRE evaluation or
eyewitness testimony would still be required to determine
whether she was impaired.
¶33 Here, the State presented testimony from the officer
regarding Salgado’s unusual driving patterns and her
performance on several field sobriety tests to prove that she was
impaired to a degree that rendered her incapable of safely
operating her vehicle. In particular, the officer testified that
Salgado first caught his attention because she was driving
considerably below the speed limit, which created a “traffic
hazard” for the cars that had to go around her. According to the
officer, he then made several attempts to get Salgado to pull
over—including driving along both sides of her car, driving in
front of and behind her car, motioning with his hand, activating
his emergency equipment, and making an announcement over
his public address system—yet Salgado did not respond. The
officer further testified that although he had previously been
worried that Salgado was experiencing mechanical or medical
issues, he began to suspect that she was impaired when she
failed to pull over and when she maintained her intent focus
straight ahead. When Salgado did finally pull over, the officer’s
suspicion was heightened when he noticed that her “eyelids
were very droopy” and that “[s]he was very confused about
what was going on and why she was being stopped.”
20160104-CA 12 2018 UT App 139State v. Salgado
¶34 To confirm whether Salgado was impaired, the officer
began a DUI investigation, which included three standardized
field sobriety tests that are used “whether [the officer is testing]
for drugs or . . . alcohol.” The officer testified that Salgado
showed signs of impairment during each test, exhibiting twelve
out of eighteen possible clues.
¶35 Salgado’s challenge to the sufficiency of the evidence
largely rests on her contention that the officer’s testimony is
speculative because he was not certified as a DRE at the time of
Salgado’s arrest. To support her argument that a DRE evaluation
is required to assess drug impairment, Salgado relies on State v.
Hechtle, 2004 UT App 96, 89 P.3d 185. In Hechtle, this court was
asked to determine whether the officer had probable cause to
arrest the defendant for driving with any measurable controlled
substance in the body. Id. ¶ 9. The officer identified several
factors to support his probable cause determination, including,
among other things, the presence of several air fresheners in the
car and the appearance of the defendant’s eyes and tongue. Id.
¶¶ 3–5. In concluding that the officer lacked probable cause, this
court reasoned that “the trooper noted . . . no signs of recent
drug use” and that “he did nothing to confirm his suspicions.”
Id. ¶ 14 (emphasis omitted). In particular, “[t]he trooper
performed no field sobriety tests and made no attempt to
involve a certified DRE to validate his suspicions.” Id.
¶36 Contrary to Salgado’s reading, Hechtle does not require a
DRE evaluation in every case where an officer suspects that a
driver is under the influence of drugs. Indeed, this court
recognized that “conclusions concerning drug use do not require
a DRE so long as the officer involved is prudent, experienced,
and trained and can employ proper technique in making the
determination.” Id. ¶ 13 n.3. The officer in this case had
significant training and experience related to detecting drug and
alcohol impairment. Specifically, the officer testified that he was
“certified as a standardized field sobriety instructor” and that he
had been “a DRE for a couple of years.” Although he had not
renewed his DRE certification, he had previously undergone the
20160104-CA 13 2018 UT App 139State v. Salgado
requisite training that aided his conclusion that Salgado was
impaired. And, unlike the officer in Hechtle, the officer observed
odd behavior indicative of recent drug use, including Salgado’s
intent focus straight ahead and failure to notice his signals to
stop, and he conducted several field sobriety tests, which
confirmed his suspicion of impairment.
¶37 Salgado maintains that there are several innocent
explanations for her driving pattern and performance on the
field sobriety tests. However, “when conflicting or disputed
evidence is presented at a jury trial, the jury serves as the
exclusive judge of both the credibility of the witnesses and the
weight to be given particular evidence.” State v. Prater, 2017 UT
13, ¶ 31, 392 P.3d 398 (quotation simplified). On “a motion for a
directed verdict, the court is not free to weigh the evidence and
thus invade the province of the jury, whose prerogative it is to
judge the facts.” Montoya, 2004 UT 5, ¶ 32 (quotation simplified).
Rather, viewing the evidence in the light most favorable to the
State, the court must “determine whether the state has produced
‘believable evidence’ on each element of the crime from which a
jury, acting reasonably, could convict the defendant.” Id. “If
there is any evidence, however slight or circumstantial, which
tends to show guilt of the crime charged,” the court must submit
the case to the jury. Id. ¶ 33 (quotation simplified). As explained
above, the State met its burden of producing believable evidence
on each element of DUI. Thus, the trial court did not err in
denying Salgado’s motion for a directed verdict at the close of
the State’s case and submitting the charge to the jury.
II. Jury Instructions
¶38 Salgado contends that “the trial court erred by giving
Instructions 18 and 19 because those instructions improperly
commented on the evidence by incorrectly instructing the jury
on how to determine drug impairment.” “It is the sole and
exclusive province of the jury to determine the facts in all
criminal cases . . . .” State v. Maama, 2015 UT App 235, ¶ 20, 359
P.3d 1272 (quotation simplified). Thus, “a court may not
20160104-CA 14 2018 UT App 139State v. Salgado
comment on [either] the weight of the evidence presented at trial
or . . . the merits of the case in such a way that indicates a
preference toward either party.” State v. Fouse, 2014 UT App 29,
¶ 24, 319 P.3d 778 (quotation simplified). “Language used in jury
instructions should not overemphasize an aspect of the evidence
or amount to a comment on the evidence.” 75A Am. Jur. 2d Trial
§ 981 (2018). A jury instruction may amount to an improper
comment on the evidence where the court singles out or gives
undue emphasis to particular evidence while disregarding other
evidence. See id.
¶39 Salgado contends that Instructions 18 and 19 both
improperly commented on the evidence. We consider each
instruction in turn.
A. Instruction 18
1. Preservation
¶40 As an initial matter, the State contends that Salgado’s
challenge to Instruction 18 is unpreserved because her “claim on
appeal is not the claim she raised below.” In describing
Salgado’s objection at trial, the State explains that “[Salgado]
argued that listing some . . . factors relevant to assessing
impairment improperly emphasized those factors over . . . other
potentially relevant factors and thereby constituted improper
comment on the evidence.” The State then articulates Salgado’s
contention on appeal, explaining that “she argues that the court
should have given the jury different or additional factors to
consider.” Salgado maintains that her argument on appeal is the
same one made during trial—that “Instruction 18 was erroneous
and should not have been given,” not that it should have been
supplemented to include additional factors.
¶41 For an issue to be preserved, it “must be specifically
raised, in a timely manner, and must be supported by evidence
and relevant legal authority.” State v. Oliver, 2018 UT App 101,
¶ 13 (quotation simplified). At trial, Salgado argued that
“anything that’s admitted into evidence is . . . presumed to be
20160104-CA 15 2018 UT App 139State v. Salgado
relevant” and will be considered in the jury’s deliberations. But
according to Salgado, Instruction 18 impeded the deliberative
process by “emphasiz[ing] some pieces of evidence over
other[s].” In particular, she believes that Instruction 18 could
lead the jury to incorrectly assume that the “defendant’s
coordination, judgment, [and] physical appearance” are
important factors, while “a medical condition [and] . . . language
issues” are not. On appeal, Salgado points to additional
shortcomings: “[Instruction 18] did not tell the jury that drugs
affect different people differently, educate the jury on the factors
DREs use to determine drug impairment, or provide a list of
factors tailored to tramadol impairment.” Contrary to the State’s
characterization, 5 Salgado has never argued that Instruction 18
should have included these additional factors. Instead, she
highlights these factors to support her contention that an
instruction of this kind should not be given at all. Because
Salgado has raised the same issue at trial and on appeal, we
conclude that this issue is preserved and review it accordingly.
2. Harmlessness
¶42 Salgado contends that Instruction 18 improperly
commented on the evidence because it “emphasized some
factors of impairment over others and incorrectly limited the
5. To the extent that the State recognizes that Salgado intended
to renew her trial argument—that “Instruction 18 constituted a
comment on the evidence because it improperly emphasized
some factors of impairment over others”—it contends that her
argument is inadequately briefed. As we determined with the
State’s preservation challenge, we conclude that the State’s
inadequate briefing challenge is based on a misinterpretation of
Salgado’s argument. And we are unpersuaded that the renewal
of her trial argument was relegated to a “single conclusory
statement.” Instead, we conclude that it was supported by
citations to the record and relevant legal authority as required by
rule 24(a)(8) of the Utah Rules of Appellate Procedure.
20160104-CA 16 2018 UT App 139State v. Salgado
types of factors for emphasis to the physical manifestations of
alcohol impairment.” In other words, Instruction 18 “was
erroneous because it instructed the jury to assess drug
impairment the same way that it would alcohol impairment.”
¶43 Instruction 18 included a nonexclusive list of factors that
the jury could consider in determining whether Salgado was
impaired to a degree that she could not safely drive. The
instruction provided:
In determining whether alcohol and/or drugs
rendered defendant incapable of safely operating a
vehicle, relevant factors include, but are not limited
to, the following:
• The defendant’s driving pattern, if any
• The defendant’s physical appearance
• The smell of alcohol on the defendant, if any
• The defendant’s coordination
• The defendant’s judgment
• The defendant’s actions before and after
driving
• Whether the defendant took field sobriety
tests and, if so, her performance on them
¶44 Even assuming the trial court erred in instructing the jury
on factors that were irrelevant to assessing tramadol
impairment, we conclude that any error was harmless. An error
does not require reversal “if it is sufficiently inconsequential that
we conclude there is no reasonable likelihood that the error
affected the outcome of the proceedings.” State v. Reece, 2015 UT
45, ¶ 33, 349 P.3d 712 (quotation simplified).
20160104-CA 17 2018 UT App 139State v. Salgado
¶45 Instruction 18 included only one factor that referenced
alcohol: “the smell of alcohol on the defendant, if any.” It is clear
from that instruction that this factor is to be disregarded if the
smell of alcohol is absent. As a result, where the State presented
no evidence of alcohol impairment, “there was absolutely no
way the jury could have related the instruction to the verdict.”
State v. Anselmo, 558 P.2d 1325, 1327 (Utah 1977). The remaining
factors were relevant to both drug and alcohol impairment. We
therefore conclude that there was no reasonable likelihood that
Instruction 18 affected the outcome of the trial.
B. Instruction 19
¶46 Salgado also contends that Instruction 19 improperly
commented on the evidence. Instruction 19 provides:
[I]t is not a defense to the charge of DUI that the
defendant is or has been legally entitled to use the
alcohol or drugs she may have consumed. In other
words, the fact that the defendant may have taken
drugs as directed by a physician pursuant to a
prescription or otherwise does not excuse the
defendant’s liability for DUI if her ability to safely
operate a vehicle is impaired as a result of the
introduction of such drugs into the defendant’s
body.
Salgado concedes that the first sentence accurately reflects the
law as prescribed by Utah Code section 41-6a-504. See Utah Code
Ann. § 41-6a-504 (LexisNexis 2014) (“The fact that a person . . . is
or has been legally entitled to use alcohol or a drug is not a
defense against any charge of violating [the DUI statute].”). But
Salgado argues that “the jury could have understood [the second
sentence] to mean that [it] could not consider the fact that [she]
took tramadol as prescribed . . . as evidence that [she] was not
impaired.” We disagree with Salgado’s reading of Instruction 19.
20160104-CA 18 2018 UT App 139State v. Salgado
¶47 The second sentence of Instruction 19 reiterates the law in
simple terms and tailors it to drug impairment, which was the
relevant scenario at trial. The second sentence does not bar the
jury from considering evidence that Salgado took tramadol as
prescribed to mitigate a finding of impairment. Instead, it
accurately states the law: legal use of prescription drugs is not a
defense to DUI “if [an individual’s] ability to safely operate a
vehicle is impaired” as a result of taking the medication.
Accordingly, we conclude that Instruction 19 was a correct
statement of the law and properly given.
¶48 Because we conclude that any error in providing
Instruction 18 was harmless and that the trial court did not err in
providing Instruction 19, we need not address Salgado’s
contention that these instructions prejudiced her defense.
III. Lesser Included Offense
¶49 Salgado contends that the trial court improperly denied
her request “to instruct on minimum-speed violation as a
lesser-included offense of DUI.” “A defendant’s request for a
lesser included offense instruction is evaluated under the
evidence-based standard set out in Utah Code section 76-1-
402(4).” State v. Campbell, 2013 UT App 23, ¶ 5, 295 P.3d 722(quotation simplified). In interpreting this standard, the Utah
Supreme Court has determined that a defendant is entitled to
such an instruction where (1) “the charged offense and the lesser
included offense have overlapping statutory elements” and
(2) “the evidence ‘provides a rational basis for a verdict
acquitting the defendant of the offense charged and convicting
him of the included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154
P.3d 788 (quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)).
Salgado has not established a rational basis in the evidence that
would have justified acquitting her of DUI and convicting her of
a minimum-speed violation.
¶50 There was no evidentiary basis to convict Salgado of
committing a minimum-speed violation. A person violates the
minimum-speed statute by “operating a motor vehicle at a speed
20160104-CA 19 2018 UT App 139State v. Salgado
so slow as to impede or block the normal and reasonable
movement of traffic.” Utah Code Ann. § 41-6a-605(1) (LexisNexis
Supp. 2016). However, a person does not violate the statute if “a
reduced speed is necessary for safe operation.” 6 Id. § 41-6a-
605(1)(a).
¶51 At trial, Salgado testified that her car had a flat tire and
that she was trying to drive from Utah Valley University to her
mechanic in Salt Lake City. She testified that she was driving
slowly because her “car was making a strange noise” and she
“was afraid [she] was going to get into an accident.” If the jury
had credited Salgado’s testimony that her slow speed was due to
some type of mechanical problem and not due to drug
impairment, it would have acquitted on both DUI and
minimum-speed violation charges. Based on the evidence
presented at trial, there was no rational basis on which the jury
could have acquitted Salgado of DUI while convicting her of a
minimum-speed violation. Therefore, the court properly denied
her request for a lesser included offense instruction.
6. Salgado argues on appeal that this exception is an affirmative
defense that the State would need to disprove only in the event
that she asserted it. Even assuming, without deciding, that the
exception is an affirmative defense, by testifying that she was
driving slowly because she had a flat tire and that her car was
making a strange noise, Salgado had put the exception at issue,
and the State therefore would have had to disprove it for the
jury to convict her of a minimum-speed violation. See State v.
Drej, 2010 UT 35, ¶ 15, 233 P.3d 476 (“The Utah rule requires that
the prosecution disprove the existence of affirmative defenses
beyond a reasonable doubt once the defendant has produced
some evidence of the defense.” (quotation simplified)).
20160104-CA 20 2018 UT App 139State v. Salgado
CONCLUSION
¶52 We conclude that the State presented sufficient evidence
to prove beyond a reasonable doubt that Salgado was impaired
by prescription drugs to a degree that rendered her incapable of
safely operating her vehicle. In addition, we conclude that
neither Instruction 18 nor Instruction 19 improperly commented
on the evidence. Finally, we conclude that the trial court
correctly denied Salgado’s request for a lesser included offense
instruction. Accordingly, we affirm Salgado’s convictions.
20160104-CA 21 2018 UT App 139