Chemical Test for DUI in Utah
Under Utah law, a person who drives a motor vehicle is deemed to have given her consent to chemical testing of her blood, breath, and urine. In determining if the chemical testing is valid or not, the prosecutor must show that the original stop was valid. There must be a showing of reasonable cause that the motorist committed some traffic violation or was involved in some accident.
After the arrest, the officer will inform the motorist of the Utah implied consent statute. The officer will indicate that she wants the driver to give a sample. The officer has the sole discretion in determining what sample will be given. The driver can be forced to give a blood, urine, saliva, or breath test. The driver cannot choose which sample to give. Furthermore, the officer can ask for more than one sample. Thus, if the driver gives a breath sample and it comes back negative, the officer can request a blood or urine sample. There is no limit as to the number of sample requested.
If the driver refuses to give a sample, the officer will inform the driver that refusal will result in a revoked license. Furthermore, refusing could result in five to ten year probation and three year ignition interlock device. If the driver refuses to give a sample after being informed of the implied consent law, this counts as a refusal for administrative revocation purposes. It should be noted that a “refusal” could occur at any time. For example, an officer might ask for a breath and urine test. If you give one but refuses to give the other, this is a refusal. If you give a sample and the officer asks for another; not giving the second sample is a refusal.
To apply the implied consent law, a valid stop is a prerequisite. If the original stop was illegal, everything after becomes illegal and excluded. It doesn’t matter if you gave your consent just by driving on the road; your consent is now nullified. A valid stop requires a showing that the officer had probable cause to believe that the driver was intoxicated or committed a traffic offense.
If the motorist is lawfully arrested and the arresting officer has probable cause to believe that the motorist was driving under the influence, the motorist might be required to give a blood or urine sample. Under Utah law, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of her breath, blood, and urine. The test to be given depends on the local police department’s policies. Normally, the police department will have breathalyzers available. If no breathalyzers are available, the next test is blood. If both blood and breath tests are unavailable, saliva or urine tests are used. Normally, the arresting officer will tell you about the tests and allow you to choose one. If you request a certain test, the officer must obey; unless the department lacks the necessary equipment to do so.
However, you are not required to give a sample. As a general rule, you are your own destiny; you can consent or not consent to giving a sample. The police cannot use force or coercion to obtain the sample. There are two exceptions to this general rule. The first is when there is a desperate need. For the desperate need exception to apply, the officer need to have probable cause to believe that the person under arrest, while intoxicated, has operated the motor vehicle in such a manner as to have caused the death or serious physical injury of another person or persons. The officer needs to write his probable cause in an affidavit and sign his name at the bottom. By doing so, the affidavit and probable cause becomes a warrant for the intoxicated person’s blood, breath, urine, etc.
The second exception is being unconscious. Under Utah law, the implied consent law applies even to unconscious people. You still gave your consent to taking the test. Thus, the police can take your breath/blood/urine/saliva while you’re asleep.
There two ways to avoid consenting to give a sample and not get your license revoked: not be on one of the specified area or be suffering from a medical condition. For the former, the implied consent statute only applies to turnpike, public places, private roads, streets, alleys or lane which provides access to housing. If you were in some other place (say a cornfield), then asking for a sample is inappropriate.
The second way is a medical condition. When asked to give a sample, you can tell the officer that you have a medical condition that prevents you from giving a sample. For example, a person with asthma would have a hard time blowing into a breathalyzer. To invoke the exception, you need to prove your medical condition by a doctor’s order or any other documentation.
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