State v. Hernandez7/25/2003
Hernandez was charged with driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle and failure to wear a safety belt. At trial, the parties stipulated to certain facts regarding Hernandez's conduct during the incident at issue. The trial court incorporated these stipulated facts into its Findings of Fact as follows:
1. On June 30, 2001[,] Ernesto A. Hernandez, defendant[,] did drive 82 miles per hour in a 60 mile per hour posted zone;
2. Defendant failed to wear his seat belt;
3. Defendant followed the vehicle in front of his at an unsafe distance;
4. Defendant was driving under the influence of alcohol with a breath alcohol content of .155[;] and
5. Defendant had his daughter in the car at the time who was under the age of sixteen years.
**3 Based upon these facts, Hernandez argued that his conduct was proscribed by both the statute defining reckless driving, Utah Code Ann. § 41-6-45(1)(b) (Supp.2002), [FN1] and the statute defining driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle, Utah Code Ann. § 41-6-44(2)(a)(iii), (3)(a)(ii)(B) (Supp.2002). Because section 41-6-45(1)(b) carries a lesser penalty than the part of section 41-6-44 under which Hernandez was charged, [FN2] *200 Hernandez argued that the Shondel rule was applicable and, therefore, that he was entitled to be charged and sentenced under section 41-6-45(1)(b). See State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969).
FN1. Hernandez argued that his conduct was defined by the reckless driving statute because the stipulated facts established that he "committ [ed] three or more moving traffic violations under Title 41, Chapter 6, Traffic Rules and Regulations, in a series of acts within a single
continuous period of driving." Utah Code Ann. § 41-6- 45(1)(b) (Supp.2002).
FN2. Driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle is a class A misdemeanor. See Utah Code Ann. § 41-6-44(3)(a)(ii)(B) (Supp.2002). Reckless driving is a class B misdemeanor. See id. § 41-6-45(2).
**4 The trial court concluded that the part of section 41-6-44 under which Hernandez was charged and section 41-6-45(1)(b) do not proscribe the same conduct, and, therefore, that the Shondel rule was inapplicable. Accordingly, the trial court convicted Hernandez of driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle, pursuant to section 41-6-44. See Utah Code Ann. § 41-6-44(2)(a)(iii), (3)(a)(ii)(B). Hernandez now appeals.
ISSUE AND STANDARD OF REVIEW
**5 The sole issue on appeal is whether the trial court erred in determining that the part of Utah Code Ann. § 41-6-44 (Supp.2002) under which Hernandez was charged and Utah Code Ann. § 41-6-45(1)(b) (Supp.2002) do not proscribe the same conduct, thereby rendering the Shondel rule inapplicable. [FN3]
FN3. In addition to his Shondel argument, Hernandez presents a statutory interpretation argument for our consideration. We do not separately address his statutory interpretation argument because our analysis under the Shondel rule requires us to interpret and compare the two statutes in question. See State v. Fedorowicz, 2002 UT 67, 49-58, 52 P.3d 1194, cert. denied, 537 U.S. 1123, 123 S.Ct. 859, 154 L.Ed.2d 805 (2003); State v. Bluff, 2002 UT 66, 33-36, 52 P.3d 1210, cert. denied, 537 U.S. 1172, 123 S.Ct. 999, 154 L.Ed.2d 914 (2003); State v. Gomez, 722 P.2d 747, 749 (Utah 1986); State v. Green, 2000 UT App 33, 6-8, 995 P.2d 1250; In re W.C.P., 1999 UT App 35, 14-15, 974 P.2d 302; State v. Giles, 966 P.2d 872, 875-76 (Utah Ct.App.1998).
**6 "Because the determination of whether two statutes proscribe the same conduct is a
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