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State v. Hernandez7/25/2003
a passenger under 16 years of age in the vehicle at the time of the offense." Id. § 41-6-44(2)(a)(iii), (3)(a)(ii)(B). The State is not specifically required to prove these two elements to convict a defendant under section 41-6-45(1)(b). See id. § 41-6-45(1)(b).
**13 Further, even if proof of these two elements could be used as part of establishing one of the "three or more moving traffic violations under Title 41, Chapter 6," id., required to convict a defendant under section 41-6-45(1)(b), section 41-6-45(1)(b) requires proof of elements not required by the part of section 41-6-44 under which Hernandez was charged. To convict a defendant under section 41-6-45(1)(b), the State is required to prove that the defendant "operate[d] a vehicle ... while committing 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." Id. To prove this, the State must prove the underlying elements of at least three "moving traffic violations under Title 41, Chapter 6." Id. Therefore, section 41-6-45(1)(b) will always require proof of additional elements beyond any single "moving traffic violation[ ] under Title 41, Chapter 6," id., including driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle under section 41-6-44.
**14 Because "the elements of the crime[s] are not identical and the relevant statutes require proof of some fact or element not required to establish the other, the statutes do not proscribe the same conduct." State v. Green, 2000 UT App 33, 6, 995 P.2d 1250 (quotations and citations omitted). Therefore, the Shondel rule is inapplicable in this case.
CONCLUSION
**15 We conclude that the trial court did not err in determining that driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle under Utah Code Ann. § 41-6-44 (Supp.2002) and reckless driving under Utah Code Ann. § 41-6-45(1)(b) (Supp.2002) do not proscribe the same conduct. Therefore, we conclude that the trial court did not err in determining that the Shondel rule was inapplicable in this case. Accordingly, we affirm Hernandez's conviction.
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