Utah Criminal Defense

DUI / Drugged Driving

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DUI / Drunk / Impaired / Drugged Driving

IMAGINE a simple marijuana roach will suspend your Utah driver’s license for 6 months even though you were not driving. Imagine being in the city park off Center Street in Provo when the Provo police approach you. Marijuana and a pipe are being used, so you are guilty of smoking it, but not guilty of possessing the pipe. That was your friend’s pipe. No one takes responsibility for the marijuana pipe and Provo police charge you with drug paraphernalia possession because the pipe was closest to where you were sitting when the Provo police arrived.


Ma Prov  Utah Drunk Driving convictions are enhanceable offenses.  Meaning they stack up and if you receive 3 DUIs like convictions in 10 years–Its a Felony DUI.  See this article for more information.

Below is the DUI process.  Utah DUI attorney Jake Gunter can ensure you are treated fairly.  (801) 373-6345.


DUI judicial process


This is what you can expect when you receive a DUI or driving under the influence-type of offense in Utah:

Incident: You must go over the facts of the incident with your attorney. There could be evidence or witnesses that may need to be contacted. You may discuss how much was had to drink, where, how much did you eat, etc.  Was there a DUI checkpoint?  Where the DUI check rules followed?  Was this a prescription drug DUI or metabolite marijuana DUI?

Where you an Alcohol Restricted Driver?  Meaning 0.00 BAC is the only acceptable limit when you are driving.


DUI Arrest: From the moment the police officer sees your car, or receives a tip that you are possibly driving impaired, to the moment you are released to jail custody, your actions are being noted for the officer’s DUI report.  You can read the entire DUI police manual here if you want.   Here are basic DUI phases of investigation:

A).  Vehicle in Motion. The officer looks for trouble stopping at lights, slow acceleration, following too closely (tailgating), improper or unsafe lane changes, illegal or improper turn, driving on other than designated roadway, stopping inappropriately in response to officer, inappropriate or unusual behavior (throwing objects, arguing, etc.) or appearing to be impaired.  Your Utah DUI attorneys needs to know the Utah Traffic Code forwards and backwards.

B).  Personal Contact with Suspect. Face-to-face observations include personal appearance, statements, and other evidence obtained during the initial contact with the police officer. Smell, disheveled clothing, soiled or wet clothing, and scratches on the face/body can all indicate to the officer someone is impaired. The officer will also observe how a suspect enters and exits the vehicle, and how they respond to police questioning.

C).  Pre-Arrest Screen/Field Sobriety Testing. Field sobriety tests are administered to the driver and the results of any preliminary breath tests are put into the record. Divided attention questions are typically posed to the suspect during this time. All of these factors culminate in a DUI arrest.  See this Field Sobriety Testing (“FSTs”) article for more exact information.

Vehicle Impound. Once arrested for a DUI, your car will be towed and impounded.  During the vehicle impound your car will be further searched.  It’s legal as long as the police follow their administrative rules for impound searches incident to a Utah DUI arrest.   If they found an alcohol open container or drugs / meth / heroin you will likely received further charges.  You will need to retrieve it later to avoid further yard or impounds fees.

County Jail Booking. Your fingerprints and photo will be taken, your personal possessions will be inventoried, and you will be searched for contraband prior to admission into the jail. Expunging your Utah DUI will seal from the public records not only the DUI conviction, but also the jail records.  Most counties have online look-up of jail bookings.  See Juab, Utah, Salt Lake and Davis County sheriff websites for jail inmate booking information.

Driver’s License Administrative Hearing. The police officer during your arrest will advise you that you have 10 days to request an administrative hearing to determine whether the Utah Driver’s License Division should suspend your Utah license for 120 days for illegal driving under the influence of drugs or alcohol.  Refusing the Breathalyzer has serious impacts on your license and your Utah DUI case.

Initial Bail Hearing. Eventually you will be released on bail or see the bail commissioner to set bail within a day or two. For basic, first-time offense DUIs, bail is very reasonable. The total fine for a first-time DUI is $1,405.

DUI Arraignment. Within 30 days you will receive an initial arraignment date from the court. If you hire an attorney, this date will be continued to a pretrial conference scheduled even further out. The purpose of Arraignment is to have the charges read to you, unless waived, and for you to plead guilty or not guilty. The prosecuting attorney is often not even present at the Arraignment or will not negotiate with you at this time until the pretrial conference.

Discovery in DUI Cases. The following discovery is pretty standard in all Utah driving under the influence cases. Your attorney will request these records and share copies with you.  See this video on basic discovery in Utah criminal cases.

(1). Police report.

(2). Any photographs or witness statements.

(3). 9-1-1 calls and police radio dispatch.

(4). Law enforcement body camera footage.

(5). Law enforcement police car dash camera footage.

(6). Toxicology report. The tox report details which controlled substances were in your body and the toxic limits of these drugs. The tox report also details your blood alcohol report if a blood draw is conducted, in addition to a breathalyzer machine test.

(7). Breathalyzer test results.

(8). Jail booking video. Although not always obtained, the jail booking video can be very good evidence of your sobriety in certain no Per Se .05 or greater BAC DUI cases.

DUI Pretrial Conference. The pretrial conference purpose is to see what plea bargains or sentence bargains are available to resolve the DUIs. Without obtaining full discovery, a pretrial conference is a waste of time.

Continued Pretrial Conference. Having multiple DUI pretrial conferences are common. One reason is that discovery is often not available and analyzed yet, or clients need time to think over whether to accept the plea offer or go to trial.

DUI Motions to Suppress. Motion practice in Utah DUI defense is commonly centered around the following motions:

(1). Motion to suppress the evidence for an illegal stop due to: a. lack of reasonable suspicion, b. lack of probable cause, c. unlawful extended detention, d. Miranda rights violations, and much more.

Motions in Limine. Motions in Limine are as numerous as the mind can imagine. Motions in Limine are used by both the defense and prosecution to shape how a jury trial plays out. These motions generally ask the judge to rule in advance whether to admit or restrict evidence at the jury trial. Examples of Motions in Limine could be the defense restricting excessive pictures of injuries or car damage received in the DUI-involved car accident. Other Motions in Limine could be to kick out the breathalyzer results for the test being inappropriately administered.

The Utah DUI Jury Trial. A DUI charge can be tried to the judge or tried to a jury. In a judge trial, the judge is a trier of facts and states what the law is. In a jury trial the jurors are the ultimate decider of contested facts and the judge still instructs then on the law.

As a general rule, disputed legal issues are tried to the judge and disputed facts are tried to a jury. Legal issues are questions on how to interpret law, whereas factual disputes decided by juries are whether the light was red or green when the alleged DUI driver entered the intersection.

Jury Selection and Voir Dire. Jury selection is where the judge, defense, and prosecutor try to select a fair and impartial jury to hear the case. Prospective jurors who have had traumatic DUI experiences in the past may not be fit to hear the case. Similarly, people who have strong feelings about DUI cases, or have family members killed by DUI drivers may not be fit, fair, and impartial to serve on the jury.

Jury selection is critical and this is where an experienced criminal defense attorney can really make the difference.

Opening Statements. Opening statements are not opening arguments. The prosecutor goes first, and then the defense gives their opening statement. The defense can reserve to give their opening statement after the prosecutor’s case-in-chief. Bench trials often waive opening statements and proceed directly to the prosecutor’s case-in-chief.

Government’s Case-In-Chief. In a prosecutor’s case-in-chief, it must present sufficient evidence that you were driving a motor vehicle and illegally impaired on drugs or alcohol.

Prosecutor DUI Witnesses: Common DUI prosecutor witnesses are the arresting police officer, and sometimes citizen reporting witnesses are called to describe a terrible driving pattern. However, often the entire case is the arresting officer. Sometimes a Utah State crime lab testing official will testify to chain of custody and testing results when blood draws are conducted in the DUI investigation.

Defense DUI Witnesses. In impaired driving defense cases, or below .05 Per Se Blood Alcohol Content cases, the defense can call people who were at the crash scene. They can also call passengers, people at dinner before the incident, or others who witnessed how much the defendant drank, or didn’t drink.

Common DUI Evidence at a DUI Trial. The police report and toxicology report are used extensively at DUI trials. The police report is not admissible, but can be used by the police officer to refresh his memory, or to cross-exam the police officers at trial.

Motion to suppress transcripts. Prior evidentiary hearing transcripts can be used at trial to cross-examine the police or other witnesses who testified under oath at the previous suppression hearing. Crash scene photographs, booking videos, police camera, and 9-1-1 calls can all be used at a Utah DUI trial.

Defense Case-in-Chief. A criminally accused DUI defendant doesn’t have to prove anything at his DUI trial. The accused DUI defendant has no burden. The prosecutor and the prosecutor only must prove beyond a reasonable doubt that the defendant is guilty of driving under the influence. As result, DUI defendants often don’t present a case-in-chief and rest after cross-examining prosecution witnesses.

Closing Arguments. Unlike opening statements, closing arguments are where defense counsel and the prosecution are allowed to argue what the evidence means to the jury.

DUI Sentencing. If you are convicted of a Misdemeanor DUI, you can be immediately sentenced or wait some time to be sentenced. For felonies or sometimes Class A DUIs, you will be sent for a pre-sentence and an investigation report will be prepared for the judge for sentence recommendations.

Post-Judgment Motions to Arrest Judgment or New Trial. If you lose a DUI jury trial, you can bring a motion for a new trial based on substantial errors occurring at the trial that deprived you of a fair trial. Post-judgement motions granting a new trial or arresting judgement are commonly granted.

De Novo Justice Court Appeals to District Court. If you don’t like the sentence or the guilty verdict in a justice court DUI, you can appeal and do it all over again in the district court. An appeal from justice court to district court is called a “De Novo” appeal. You can have an entire new jury trial on the case in district court and there are serious advantages to appealing in this manner.

DUI Probation. If you lose, your DUI case you will be placed on either supervised or unsupervised DUI probation. You will likely become an interlock restricted driver, meaning you can’t drive any car in Utah without an interlock device. You will also likely become an alcohol restricted driver, or a Not-a-Drop Driver. Meaning, you can’t drive a car in Utah with any measurable amount of alcohol in your system. Your Utah DUI probation will involve a fine payment, a substance abuse evaluation and follow through with any treatment recommendations therefrom. Two days jail or 48 hours community service is mandatory for any first-time DUI conviction.  DUI probation violations can land you in jail.  Read this blog post about what probation violations are and how to deal with them. 



Simple Marijuana Possession

Class B. Misdemeanor. Bail Schedule Fine of $680. 12 months court probation and possible substance abuse treatment. Driver’s license suspension 6 months. Up to 6 months in jail.

Marijuana Paraphernalia Possession

Class B. Misdemeanor. Bail Schedule Fine of $680. 12 months court probation and possible substance abuse treatment. Driver’s license suspension 6 months. Up to 6 months in jail.

Schedule I or II Drug Distribution

2nd Degree Felony.

Schedule III or IV Drug Distribution

3rd Degree Felony for first offense. 2nd Degree Felony for any subsequent offense. Up to 1-5 years in prison, jail or probation.

Marijuana Drug Distribution

3rd Degree Felony. Up to 1-5 years in prison, jail or probation.

Violation of Labeling / Packaging Controlled Substance

Class B. Misdemeanor. Bail Schedule Fine of $680. 12 months court probation and possible substance abuse treatment. Driver’s license suspension. Up to 6 months in jail.

Mixed Controlled Substance in a Container. Possession of an Altered or Forged Rx

Class B. Misdemeanor. Bail Schedule Fine of $680. 12 months court probation and possible substance abuse treatment. Driver’s license suspension. Up to 6 months in jail.

100lbs or More of Marijuana

If the amount of Marijuana is 100 pounds or more, it is a Second Degree Felony.

DRUG FREE ZONE CRIMINAL DEFENSE LAWYER Jake Gunter can answer your questions at (801) 373-6345.


If you used, carried, or possessed a firearm, had a firearm on your person or near you during the commission or in furtherance of a drug offense, the court shall additionally sentence you for a term of one year to run consecutively and not concurrently to the underlying drug conviction.


An effective drug possession defense lawyer can help save your driver’s license and avoid a criminal conviction. Joint and constructive possession paraphernalia cases are much more difficult for the prosecutor to prove then direct possession of a marijuana pipe found in your front pocket by the Orem Police Department.

Call Provo Orem criminal defense attorney Jake Gunter for a free consultation regarding your drug offenses. Criminal defense lawyer Jake Gunter is based in Provo, Utah but services Utah state wide.

Is the lawyer you are about to call have 20 plus jury trials? Experience matters in criminal defense. Contact Jake today!

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