’T is the season … and where else in Utah can you better celebrate the holidays than in beautiful Park City? It has the four Ds necessary for enjoying the Christmas season: downhill, dining, dancing and drinking. For those coming up from the valley, it may be a great excuse to let loose and party without the specter of the LDS Temple casting its shadow. We hope you have a great time, but be warned: If you intend to get home any way other than bus, taxi or designated driver, you may be adding another D you didn’t plan for—DUI.
According to the 1999 Utah Crime Report, Summit County has one of the highest DUI arrest rates in the country, not to mention the state. The report focuses on all crimes committed in the state of Utah broken down by city, arresting agency and population. Of the 240 DUI arrests in Summit County last year, 157 were made within the Park City limits, 51 of those in the seven-mile stretch between the Park City limits (The Osguthorpe Barn) and Kimball Junction—known locally as “The Gauntlet.” Sneaking out the back way doesn’t hold much promise either. The balance of the arrests were made on the Park City Parkway between Prospector Park and the intersection of I-80.
The three law enforcement agencies operating within Summit County—the Utah Highway Patrol, Summit County Sheriff and Park City Police Department—are united in their efforts to keep drunk drivers off the road. If you think you may be excluded from these statistics because you don’t drink, listen to this. DUI stands for “Driving Under the Influence,” and is defined by Utah State Code 76-9-701 as follows:
Intoxication—A person is guilty of intoxication if he is under the influence of alcohol, a controlled substance, or any substance having the property of releasing toxic vapors, to a degree that the person may endanger himself or another, in a public place or in a private place where he unreasonably disturbs other persons.
Utah Code 41-6-43 adds the final punch: Local DUI and Related Ordinances and Reckless Driving Ordinances—An ordinance adopted by a local authority that governs a person’s operating or being in actual physical control of a motor vehicle while having alcohol in the blood or while under the influence of alcohol or any drug or the combined influence of alcohol and any drug. (2) An ordinance adopted by a local authority that governs reckless driving, or operating a vehicle in willful or wanton disregard for the safety of persons or property shall be consistent with the provisions of this code, which governs those matters.
In case you missed it, that means any and all recreational overindulgence is covered under the code, regardless of the form.
You know you aren’t in any condition to run the Gauntlet if D.C. at Miletti’s or Jared at Harry O’s offers to call you a cab. Park City’s favorite bartenders say they could have just as much to lose if they allow patrons to leave their establishments in an alcoholic blur. Under Utah code 32A-12-216, they may be liable for civil or criminal charges if you leave and endanger yourself or someone else. Take their advice: Take a cab!
PLAYING THE GAME
If you’re still feeling lucky and are determined to play our little game, here are the road rules: The goal of the game is to make it home without having a run-in with one of Summit County’s finest. Be prepared for field sobriety tests. Have all your witty explanations ready upon failing those tests, along with plenty of cash and the telephone number of your favorite bail bondsman or a friend who owes you a favor. It’s also a good idea to either have the number of a good attorney or pack your favorite jammies, because you may be participating in a Summit County sleepover should you fail in your attempt to run the Gauntlet.
The first part of our game starts the minute you leave Park City’s Main Street and fail to make it to I-80, in which case you will find yourself smiling innocently at the nice officer who has just pulled you over.
When an officer pulls you over at night, you may have been stopped for a technical failure, such as a broken tail light, expired plates or speeding, or you may have been stopped for something even more suspicious, according to a spokesman for UHP—driving too slowly. Once the officer has you pulled over, he is already determining whether you are under the influence.
The officer begins observations when approaching the car. As you roll down the window, the officer is checking to see if the driver smells of alcohol, if your eyes are watery or bloodshot, if you are having trouble retrieving your driver’s license, or if your speech is thick or slurred. If the officer does not have reason to believe you are under the influence, he or she must allow you to drive off. According to Utah and federal statute, the officer cannot order you out of the car to participate in the field sobriety tests unless he or she has probable cause to continue the investigation. Trying to negotiate the Gauntlet after 10 p.m. on your way out of Park City is usually considered probable cause.
Smell of alcohol: The smell of alcohol may be in the car even if you are not the one who’s been drinking. If there is a passenger, the passenger may have been drinking. If you have been in a bar, you probably reek of stale cigarette smoke, which can be just as compelling.
Bloodshot, watery eyes: You may be operating on very little sleep. You may have skied all day or be suffering from a cold or allergies, or this may be your normal dazed and confused look. But the officer has never seen you before and has nothing to compare his observations with.
Trouble finding your license: People organize wallets in many different ways. Some don’t separate their credit cards from their driver’s license. Some people couldn’t find their licenses if they were stone sober in broad daylight, but handing the officer anything but your driver’s license is probably enough to make him ask you to get out of the car.
Slurred speech: While an officer may associate slurred speech with driving under the influence, it may also be a side effect of certain medications or medical conditions. Remember that the officer has never had the pleasure of engaging you in conversation before, and your usually endearing way of joking, “But occifer, my steddle got pucked” in attempt to explain why you were speeding may not be as entertaining as you hoped. If you have been unable to convince one of Summit County’s finest that you are in total control, you will soon move on to the next phase of our game.
Field Sobriety Tests
Balance tests: Standing on one foot, walking an imaginary line and leaning back with eyes closed. Innocent factors affecting balance tests could include the actual location and conditions surrounding the test (on the roadside with cars speeding by), lighting (dark), surface texture (loose gravel or dirt, uneven or slanted), weather (cold, rainy, snowy), and shoes (boots, heels, stiff dress shoes).
Coordination tests: These include counting using your fingers, alternate hand-clapping, touching finger to nose with eyes closed, reciting the alphabet, and counting backward from a random number (from 73 to 57, for instance, or from 100 by sevens).
Eye nystagmus: You will be asked to follow the officer’s pen with your eyes without moving your head. The officer is checking to see if the pupil of the eye “bounces” as it follows the pen. Not only can you not pronounce the name of this test, but you also probably couldn’t perform it stone cold sober. However, it may not be wise to advise the officer of this fact.
Alcohol screening device: More and more police agencies are equipping their officers with devices called Preliminary Alcohol Screening Devices, or PBTs. These are small, portable breath machines that officers can use in the field. According to UHP, officers also carry a Drug Recognition Test device, which detects chemicals in the bloodstream. The blood-alcohol limit in Utah is .08 grams or greater per millimeter of blood within two hours of the alleged operation of a vehicle. There is no good rule of thumb for determining just how many drinks you can consume and still remain under the legal limit. It depends on body weight, absorption and other contributing factors.
Now you may think that forewarned is forearmed. BUZZ—wrong! These tests are not designed for you to pass. Park City criminal attorney Bruce Savage has more than 20 years experience in Summit County. He recently gave a friend a few of these tests, mid-afternoon, after the friend had consumed one beer. The legally sober man in a non-stressful situation (i.e., it was not a cold, snowy night on the side of the road in view of Park City’s entire population) failed two tests within the first 60 seconds.
Another aspect of the interrogation is that once the officer believes you are impaired, he has the right to search your vehicle. So even if your buddy was the one who left his empty baggie, which may contain residue of some “controlled substance,” under your backseat without your knowledge, you may now be looking at an additional charge of possession of paraphernalia. We are now moving into a more serious realm that may result in criminal charges.
That brings us to the next challenge in the game. Refusal to take a PBT or DRT will automatically guarantee you an escort to the Summit County Justice Center and, as the officer will advise you, could result in the immediate confiscation of your operator’s license. The officer will issue you a temporary license good for 29 days. That 29-day time period becomes very important in your life, as you will see when our game continues.
While Utah statute does not specifically bar you from refusing to take the tests, when you applied and signed for your Utah driver’s license you gave your “implied consent to any and all chemical tests for alcohol or drug … under the direction of a peace officer having grounds to believe …” And if you think you are exempt because you’re visiting, guess again. You gave the same implied consent just by choosing to drive on Utah’s roads. According to Utah law, if you attempt to use the following stall tactics to avoid taking any test, you should be aware of the consequences:
Refusal to take the breath test offered by the officer:
“The arresting officer may request any authorized health-care provider to draw a blood sample.”
Accept the blood test but request your own physician: “The person to be tested may at his own expense have his own physician administer a chemical test.”
Passing out, falling asleep, playing dead, etc: “Any person who is dead, unconscious, or in any other condition rendering him incapable of refusal to submit to any chemical test, is considered not to have withdrawn the consent for the test, whether the person has been arrested or not.”
Requesting a conference with your attorney:
“For the purpose of determining whether to submit to a chemical test … [the driver] does not have the right to consult an attorney or have an attorney, physician, or other person present as a condition for the taking of the test.”
Flat out refusal:
“If a person under arrest refuses to submit to … test or tests … evidence of his refusal is admissible in any civil or criminal action or proceeding arising from the acts alleged to have been committed while the person was operating … a motor vehicle while under the influence of any alcohol, [or] any drug.”
LET IT RIDE
If you’re still in a gambling mood and believe that by refusing to take the tests it’s your word against the officer’s, you might want to check the dashboard of the police vehicle. Most city, county and UHP patrol vehicles are equipped with video cameras. Refusing to take the tests, your attempts at persuasion or even just trying to stay on your feet might be captured for posterity—or at least for the court. The field tests only indicate whether alcohol or drugs might be present in the system. If your hasty explanation of a heavy dose of Nyquil hasn’t quite convinced the officer of your sobriety, you’ll soon be on your way to a personal tour of the Summit County Justice Center.
Once there, the officer can request you take a blood, breath or urine test, or any combination of the three, as many times as he believes necessary. (Remember, you agreed when you signed for your driver’s license.)
The next phase of our little game is called “pay to play,” and as you continue along, you will pay, and pay, and pay. First, you pay the towing company that was called to tow your vehicle (and no, you can’t call someone to drive it home). The towing companies used in Summit County are Belcher’s Towing (within Park City limits) and Skyline Towing (in the county). The cost of the tow starts at $80 per hour, and the time runs from when the officer calls for the tow until your car is safely in the impound lot with the paperwork completed. According to both companies, the average tow runs about $140. The cost of the fine to get your car released is $200—it is, they insist, not a fine for the DUI itself, but an impound fee. If you happened to be picked up on a Friday night, add an extra $40 to the towing company for storage fees ($10 per day beginning on the day your car was picked up—11:45 p.m. counts as day one; 12:01 a.m. is day two, etc.—and the impound lot is not open Saturday, Sunday or holidays).
Ernie at Skyline Towing says don’t assume you’re home free if you’ve managed to run the Gauntlet and make it to one of the fast food restaurants at the Junction for a celebratory/sobering cup of coffee. On Thanksgiving Day, he was called to tow the car of a DUI arrest at Wendy’s drive-up window. A concerned employee had called the police. Ernie’s advice for avoiding unnecessary fees: Don’t drink and drive. But if you are really insistent on getting both you and your car home, give him a call. He’d be glad to hook up your car and tow both of you home anywhere between Deer Valley and the Junction for about $50—it’s a little more if you want to be chauffeured down the mountain, but still considerably less than the $400 you’ll be shelling out if you fail to run the Gauntlet successfully.
The next player you’ll meet in our game is the desk officer, who will advise you that your get-out-of-jail card costs $1,300. That’s assuming you don’t have other charges stemming from your current arrest and no previous DUIs, in which case you can triple the bail amount. If you plan on paying the nice officer yourself, or have convinced a rich friend to come get you, make sure you have plenty of cash—the Summit County Court system does not take American Express (or Visa).
CALL FOR REINFORCEMENTS
Assuming all your dearest friends are sitting in the holding cell next to you, you will be told the name of the next player in our game, the local bail bondsman. Stacy at Beehive Bail Bonds will be glad to send someone over 24-seven, and she does take checks and credit cards. The minimum bond is 10 percent of your accrued fines.
OK, now that you have your get-out-of-jail card, this is where the game gets really exciting, says attorney Bruce Savage. Not only do you get to make a whole new slew of friends and share your money with them, you get to spend hours and hours explaining to friends, family members, employers, judges and rehab counselors just how you came to play the game in the first place.
Savage advises to read your release paperwork carefully, and call an attorney immediately. At the very bottom of the page is a paragraph that says you have 10 days to “make a timely written request for hearing. … Failure to do so shall result in the driver losing his privilege to operate a motor vehicle in the state and shall have his license revoked beginning on the 30th day after the date of the arrest for a period of not less than 18 months.”
Now Savage isn’t campaigning for your business, but he does believe that in order to play the game, you need to have someone on your side who not only knows all the rules but also the other players. Once you’ve gotten to this point, operating as your own attorney is not unlike performing your own appendectomy with a pocketknife. The cost of an attorney varies. Your sister’s brother-in-law just out of law school might charge you a $100. A poll of Park City and Salt Lake attorneys indicates an average fee for DUI is about $750, assuming you’re a first-time player with no other extenuating charges and will not go to trial. If you want your day in court, add about $1,000. It would be difficult for a doctor to diagnose your broken leg over the phone, the same holds true for attorneys. Make an appointment; most attorneys will talk to you for free the first time.
Let’s assume you have finally gotten an attorney and are now entering the third phase of our game. In addition to money, you get to donate your time, starting with a minimum of three days in court: one day for arraignment, one day for pretrial and one day for sentencing. In addition to the court dates, you are also required under Utah statute 62A-8-107 to submit yourself for “substance abuse addiction and dependency screening … at a substance abuse program that is approved by the Board of Substance Abuse.” This entails sharing more of your time and money. Wade Milne at the Park City division of Valley Mental Health explains that there is a new program just mandated by the state for first- and second-time DUI offenders. The program is offered by several agencies and begins with a court-ordered briefing and assessment, a 16-hour drug-and-alcohol education class and an exit interview. Cost of the class is $300, and it’s not covered by insurance.
After successful completion of your class, you will go back to court to assure the judge (with the recommendation of the treatment counselor) that you do not need additional treatment or counseling, that you are no longer interested in playing our game, and that you promise to remain an upstanding sober citizen while driving on Utah roads. Some additional advice from Savage: Humility and remorse are good here—lots and lots of humility. Don’t give the judge any reason to use the additional punishment options at his disposal. In addition to the mandatory fine of not less than $700, the judge can enforce a jail sentence of not less than 48 consecutive hours, or as an alternative he may require you to work in a community service program for not less than 24 hours, participate in home confinement through the use of electronic monitoring, or participate in additional substance abuse treatment.
The moral of our story? DON’T DRINK AND DRIVE. It doesn’t pay, but it costs a lot, and the odds are against you beating the game. Take the advice of D.C., Jared, Ernie, Stacy, Savage, Wade, the judge and everyone else who plays in our game: Call a cab, call your mom, or find a friendly local with a spare couch. If you really need a risk-taking adrenaline rush, pay the $75 to hurtle down the bobsled run at the new Olympic Park. It’s cheaper and safer.