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Rosengreen v. State6/5/2003
MEMORANDUM DECISION
Not For Official Publication
Petitioner Steven G. Rosengreen appeals from an order affirming the revocation of his driver license under Utah Code Ann. § 41-6-44.10(2) (Supp. 2002). We affirm.
"In a trial de novo, the district court must determine by a preponderance of the evidence whether the petitioner's license is subject to revocation" under Utah Code Ann. § 41-6-44.10(2). Lopez v. Schwendiman, 720 P.2d 778, 780 (Utah 1986) (quotations and citation omitted). "Our review of that determination is deferential to the trial court's view of the evidence unless the trial court has misapplied principles of law or its findings are clearly against the weight of the evidence." Id. A decision to revoke a driver license must be "supported by reliable legal evidence." Kehl v. Schwendiman, 735 P.2d 413, 415 (Utah Ct. App. 1987).
In essence, Rosengreen argues that the evidence was insufficient to establish reasonable grounds to support his arrest for driving under the influence and, therefore, the revocation of his driver license following his refusal to submit to a breathalyzer test was improper. See Utah Code Ann. § 44-6-44.10(2)(a)-(b). On appeal, Rosengreen argues for the first time that the evidence was insufficient to establish reasonable grounds because the arresting officer failed to strictly comply with Utah Highway Patrol field sobriety testing standards and, therefore, the test results were unreliable. See State v. Homan, 732 N.E.2d 952, 955 (Ohio 2000) (holding that when using field sobriety tests to establish probable cause to arrest an individual for driving under the influence, the administration of those field sobriety tests must strictly comply with standardized field sobriety testing procedures). At trial, Rosengreen argued that the horizontal gaze nystagmus (HGN) and the one-leg stand tests could not be used to establish reasonable grounds for his arrest because the tests were not performed in accordance with Utah Highway Patrol standards. He further argued that "two out of the three tests" given "were clearly not wrong" and "therefore, that's not enough to form probable cause to arrest." However, at trial, Rosengreen did not argue that strict compliance with the standards was required. "We generally will not address arguments made for the first time on appeal." State v. Strausberg, 895 P.2d 831, 833 n.2 (Utah Ct. App. 1995); see State v. Peterson, 841 P.2d 21, 24-25 (Utah Ct. App. 1992) (declining to review allegation that was "not specifically or particularly" asserted before the trial court).
Rosengreen concedes that viewing the evidence in the light most favorable to the trial court's findings, see State v. Layman, 953 P.2d 782, 784 n.1 (Utah Ct. App. 1998), establishes that the arresting officer substantially complied with the field sobriety testing standards. Cf. State v. Garcia, 965 P.2d 508, 515-16 n.4 (Utah Ct. App. 1998) (noting if violation of regulations governing breath instrument calibration and testing procedures "seriously undermines the accuracy of . . . a defendant's test results, the State will not be able to establish the foundation necessary to have the defendant's test results admitted").
Even if we were to adopt the strict compliance standard, the trial court based its ruling not on the test results, but on the arresting officer's testimony that Rosengreen was incapable of safely operating a vehicle based on his performance on the three field sobriety tests, the odor of alcohol on his breath, his admission that he consumed two to three beers, and his chattiness. The trial court also emphasized that the video tape indicated Rosengreen had difficulty maintaining his balance and swayed during
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