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Salt Lake City v. Struhs12/30/2004
(For Official Publication)
Defendant Mark J. Struhs appeals his conviction for Driving Under the Influence of Alcohol and/or Drugs, a class B misdemeanor, in violation of Salt Lake City Code section 12.24.100. Defendant argues that the trial court abused its discretion in admitting evidence at trial of two prior convictions for alcohol related driving offenses. We reverse and remand for a new trial.
BACKGROUND
On April 30, 2002, at approximately 4:00 a.m., Salt Lake City Police Officer Gary Trost stopped Defendant's vehicle because, while the headlights were working, the taillights were not. Officer Trost activated his overhead lights, but Defendant failed to pull his car over to the side of the street. Officer Trost then activated his siren. Defendant still did not pull his car over. Officer Trost followed Defendant into a parking garage where Defendant parked the car. There was a male passenger also in the car. Officer Trost testified that as he approached Defendant's vehicle and spoke with Defendant, who was still in the car, Officer Trost could smell a very strong odor of alcohol coming from the car. After asking Defendant to exit the vehicle, Officer Trost testified that he could smell alcohol on Defendant's breath. Officer Trost noticed that during their conversation, Defendant had his hand on the car for balance and observed a slur in Defendant's speech.
Officer Trost asked Defendant if he had been drinking. According to Officer Trost, Defendant claimed he was coming from the Cabana Club, had tried to wait until his beers had "wore off," and that "before left tried to drink lots of water." Officer Trost noticed that Defendant's eyes were bloodshot, that he was having a difficult time completing sentences, and that he had trouble remembering things. The first field sobriety test Officer Trost performed was the Horizontal Gaze Nystagmus (HGN) test. Officer Trost had been trained that there was a correlation between the presence of HGN and alcohol impairment. Officer Trost testified that he observed six out of six possible clues indicating the presence of HGN. While he was giving the HGN test, Officer Trost testified that Defendant was swaying. Officer Trost did not perform the other two field sobriety tests because Defendant told him he had recently undergone surgery on his knee and hip. Officer Trost then administered a portable breath test which tested positive for alcohol. Officer Trost arrested Defendant for driving under the influence of alcohol and/or drugs (DUI).
After arresting Defendant, Officer Trost requested that Defendant submit to a chemical test. Officer Trost explained that Defendant had the option of a breath test at the police station or a blood test at the site of arrest. After Defendant chose to take a blood test, an officer called a phlebotomist. According to testimony of other officers involved in the arrest, the phlebotomist arrived in ordinary street clothes because he had been called out of bed to respond to the scene. According to Officer Trost, once the phlebotomist arrived, Defendant became "out of control," yelling "it's the devil." Defendant refused the blood test. Defendant again refused the blood test after he was read the refusal admonition by police. Defendant asked to be taken to Holy Cross hospital to have the blood test done there.
Defendant's testimony of the events differed slightly. Defendant testified that he was called around 11:00 p.m. to pick up his friend who had been drinking at the Cabana Club. Defendant stated that he did not drink because he had taken some painkillers as part of his recovery from recent hip and toe surgeries. Defendant testified that he had rented
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