American Fork City v. Barbour

2026 UT App 107
THE UTAH C OURT OF APPEALS
A MERICAN F ORK C ITY ,
Appellee,
v.
BRANDON S. BARBOUR ,
Appellant.
Opinion
No. 20240929-CA
Filed July 16, 2026
Fourth District Court, American Fork Department
The Honorable Denise Porter
No. 235101775
Emily Adams and Rachel Phillips Ainscough,
Attorneys for Appellant
James Hansen, Cherylyn M. Egner,
Melissa K. Mellor, and Jesse R. Drury,
Attorneys for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JOHN D. LUTHY and A MY J. O LIVER concurred.
MORTENSEN, Judge:
¶1 	Brandon 	Barbour 	was 	pulled 	over 	in 	May 	2023 	in
American Fork, Utah, and charged with 	driving under the
influence, 	driving 	on 	a 	suspended 	license, 	speeding, 	and
improper lane travel. He was convicted on all counts apart from
the speeding charge. On appeal, Barbour asserts two claims of
ineffective 	assistance 	of 	counsel, 	arguing 	that 	his 	lawyer
(Counsel) should have (1) moved to suppress the result of his
breath test because he had been biting his fingernails during the
minutes leading up to the test and (2) objected to comments made
by the prosecutor related to the breath test or otherwise played
video of the nail biting for the jury. We conclude that Barbour was

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20240929-CA 	2 	2026 UT App 107
deprived of effective assistance because a motion to suppress the
breath 	test 	would 	likely 	have 	been 	successful 	and 	because
Counsel’s failure to make such a motion prejudiced Barbour’s
defense. We therefore vacate the DUI conviction and remand the
matter for a new trial.
BACKGROUND1
¶2 	On May 7, 2023, Barbour was driving in American Fork
when he was spotted by two officers. One of the officers (Deputy)
believed, based on his “training and experience,” that Barbour
was speeding. The officers started following Barbour and pulled
him over after his car briefly crossed the median. Deputy ran
Barbour’s information through the police database and learned
that his license had been suspended and that a warrant had been
issued for his arrest based on his failure to appear in court on
multiple traffic violations. Deputy was discussing next steps with
the other officer when Barbour got out of his car. By this time,
backup had arrived, and the officers handcuffed Barbour and
placed him into one of the squad cars. In the process, one of the
officers smelled alcohol on Barbour’s breath. An officer then
asked Barbour if he had been drinking that night. He answered
that he had consumed “a shot and a beer.”
¶3 	The officers then drove Barbour to the American Fork
police station and conducted field sobriety tests (FSTs), during
which Barbour showed “clues of impairment.” At the station,
Barbour was asked again how many drinks he had consumed that
night. This time, Barbour said that he had “two shots of tequila
and two beers.” The officers also tried to administer a breath test
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (cleaned
up).

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20240929-CA 	3 	2026 UT App 107
using an Intoxilyzer machine but were unable to do so in
American Fork because the machine wasn’t working properly.
For this reason, they took Barbour to the Pleasant Grove police
station, which had a working Intoxilyzer, to conduct the breath
test. Deputy observed Barbour for more than fifteen minutes
before the test, which ultimately revealed that Barbour had a
blood alcohol concentration (BAC) of .11. American Fork City (the
City) then charged Barbour with DUI, driving on a suspended
license, speeding, and improper lane travel.
¶4 	After 	Barbour 	was 	charged, 	Counsel 	entered 	an
appearance and filed a request for discovery. The City produced,
among other evidence, bodycam footage capturing the fifteen
minutes leading up to the breath test and the test itself. The
footage showed Barbour biting his fingernails, more or less
continuously, 	for 	more 	than 	two 	minutes 	during 	the 	Baker
observation period and not stopping until less than a minute
before the officers administered the breath test. 2 At a pretrial
2. In Utah, the fifteen-minute period immediately preceding a
breath test is often referred to as the Baker period, which takes its
name from a 1960 Washington Supreme Court case. There, the
court adopted a rule requiring a party seeking to introduce the
results of a breath test to make a prima facie showing that, among
other things, the subject “had nothing in his mouth at the time of
the test and that he had taken no food or drink within fifteen
minutes prior to taking the test.” State v. Baker, 355 P.2d 806, 810
(Wash. 1960) (en banc). In 1977, Justice Maughan advocated in
dissent 	for 	the 	adoption 	of 	something 	resembling 	Baker’s
foundational requirements in Utah law. See In re Oaks, 571 P.2d
1364, 1367–68 (Utah 1977) (Maughan, J., dissenting). Although the
timing is not entirely clear, Justice Maughan’s position was
adopted no later than 2004. See State v. Vialpando, 2004 UT App 95,
¶ 14, 89 P.3d 209 (expressly adopting Baker and suggesting that
(continued…)

American Fork v. Barbour
20240929-CA 	4 	2026 UT App 107
hearing, Counsel stated that he “anticipat[ed] filing a motion to
suppress.” 	However, 	Counsel 	didn’t 	state 	the 	basis for the
potential motion, and he never filed it.3
¶5 	The case proceeded to a jury trial. The City called Deputy
and another officer who had been on the scene, and they testified
to many of the facts recited above. Deputy also testified that Baker
required him to be in the same room as Barbour for fifteen
minutes to ensure that nothing went in or out of Barbour’s mouth.
However, Deputy did not specifically state that he complied with
Baker when he administered the breath test. And on cross-
examination, he could “not recall” whether Barbour “put his
hands to his mouth” during the observation period prior to the
Intoxilyzer test. Deputy also acknowledged that he had not
smelled alcohol on Barbour’s breath or otherwise “observe[d] any
indication of impairment,” such as red eyes, during the initial
traffic stop encounter.4 On redirect, however, Deputy stated that
he was “confident, based on [his] training, that the Intoxilyzer was
our supreme court had done so in 1987 in Salt Lake City v. Womack,
747 P.2d 1039 (Utah 1987)).
3. Prior to trial, Barbour asked the district court to appoint a new
lawyer 	for 	him 	because 	he 	believed 	that 	Counsel 	was
“incompeten[t].” At a hearing on the matter, Barbour asserted that
Counsel had told him that any “[m]otions to suppress and stuff
like that” would have been futile.
4. Deputy speculated that he may not have been able to smell any
alcohol during the traffic stop because Barbour had been smoking
a cigarette. Based on our review of Deputy’s bodycam footage,
Barbour had started smoking a cigarette while Deputy was
running Barbour’s information through the police system after
the initial encounter. However, Barbour did not appear to be
smoking during that initial encounter.

American Fork v. Barbour
20240929-CA 	5 	2026 UT App 107
properly administered.” After the officers testified, the City
rested.
¶6 	Barbour elected to testify in his own defense. He stated that
he had been biting his nails during the pretest observation period.
However, Counsel did not play the portion of the bodycam video
for the jury that corroborated this testimony. Barbour also claimed
that he had to use the bathroom and “had a hard time sitting still
and focusing” during the FSTs because he “was trying to focus on
not peeing [himself].” After Barbour testified, the defense rested
and the case proceeded to closing arguments.
¶7 	In his closing argument, the prosecutor made clear that the
City’s theory on the DUI charge was based on Barbour being over
the legal BAC limit. This required the City to prove that Barbour
had either “operate[d]” or been in “actual physical control of a
vehicle” and had “a blood or breath alcohol concentration of .05
grams or greater” in his body. See Utah Code § 41-6a-502(1)(a).
The prosecutor also claimed that the Baker issue “should have
been—or was determined” before trial. And he suggested that,
even if the issue were up for debate, Deputy had complied with
Baker because he “observe[d]” Barbour during the observation
period.
¶8 	In response to the prosecutor’s point about Baker, Counsel
noted that Deputy could not recall whether Barbour placed his
fingers in his mouth during the pretest observation period.
Counsel also stated that Barbour was a painter by trade and may
have had “acetone on his fingers,” which Counsel suggested
could have been at least partially responsible for Barbour’s
elevated BAC level.5
5. Counsel’s statement, however, was not evidence. See, e.g., State
ex rel. Div. of Forestry, Fire & State Lands v. Six Mile Ranch Co., 2006
UT App 104, ¶ 31 n.10, 132 P.3d 687 (“[A]rgument of counsel is
(continued…)

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20240929-CA 	6 	2026 UT App 107
¶9 	In rebuttal, the prosecutor claimed Deputy had testified
that he complied with Baker when he administered the breath test.
The prosecutor also asserted that the rule requires only that an
officer (1) “pay attention and make sure [the defendant is] not
burping, vomiting, [or] doing anything like that” and (2) check
the defendant “for chewing gum or dentures, things like that, just
to ensure accuracy in the test.” He claimed further that the rule
does not require that an officer “pick up on every little brush of
the face or anything like that.”
¶10 	The case was then submitted to the jury, which deliberated
for a little over an hour before it convicted Barbour on the DUI,
suspended license, and improper lane travel charges. It acquitted
Barbour on the speeding count.
ISSUES AND STANDARD OF REVIEW
¶11 	Barbour appeals his DUI conviction, arguing that Counsel
rendered ineffective assistance in (1) not moving to suppress the
result of the breath test and (2) either not objecting to the
prosecutor’s statement that Deputy had complied with Baker or
not playing for the jury the portion of the bodycam video
corroborating Barbour’s testimony that he had been biting his
fingernails during the pretest observation period. 6 “Where, as
not evidence.”). And Barbour did not introduce any evidence that
he was a painter or that he had been working on the day of the
incident or on the days before. Nonetheless, Barbour can be heard
in dashcam footage captured while he was in the back of the
police car saying that he was a painter. That footage does not
appear to have been played for the jury.
6. Barbour also moves for remand under rule 23B of the Utah
Rules of Appellate Procedure to supplement the record with
evidence of Counsel’s “reasons for not introducing evidence of
(continued…)

American Fork v. Barbour
20240929-CA 	7 	2026 UT App 107
here, a defendant raises an ineffective assistance claim for the first
time on appeal, we decide it as a matter of law.” State v. Perez, 2026
UT App 57, ¶ 9, 590 P.3d 688 (cleaned up), cert. denied, June 9, 2026
(No. 20260556).
ANALYSIS
¶12 	Barbour argues that Counsel was ineffective in not moving
to suppress the result of the breath test because Deputy failed to
restart the Baker clock despite the fact that Barbour had been
actively biting his fingernails during the observation period.
Relatedly, Barbour argues that Counsel was ineffective in failing
to object to the prosecutor’s statement in closing that Deputy
complied with Baker or to otherwise play the video of Barbour
chewing his nails. As set forth below, we agree with Barbour’s
first 	argument 	and 	conclude 	that 	Counsel 	provided
constitutionally ineffective assistance in this case. We therefore
need not address Barbour’s second argument.
¶13 	Demonstrating ineffective assistance requires a defendant
to “show that (1) counsel’s performance was objectively deficient
and (2) the deficient performance resulted in prejudice.” West
Valley City v. Drawn, 2025 UT App 198, ¶ 15, 583 P.3d 1129
(cleaned up). To show deficient performance, “a defendant must
establish that counsel’s representation was not within the wide
range of reasonable professional assistance.” State v. Barlow, 2025
UT App 152, ¶ 26, 579 P.3d 422 (cleaned up). On this point, the
“ultimate 	question” 	we 	must 	always 	answer 	is 	“whether,
considering all the circumstances, counsel’s acts or omissions
were 	objectively 	unreasonable.” 	Id. 	(cleaned 	up). 	Moreover,
lawyers are entitled to pick their battles and are not obligated “to
the video supporting the Baker violation at trial.” Because we
determine that Counsel rendered ineffective assistance in the
proceedings below, we need not consider the rule 23B motion.
That motion is therefore moot.

American Fork v. Barbour
20240929-CA 	8 	2026 UT App 107
correct every error that might have occurred at trial, regardless of
whether it affected the defendant.” State v. Ray, 2020 UT 12, ¶ 32,
469 P.3d 871. Instead, we must assess whether correcting an error
at trial “was sufficiently important under the circumstances that
failure to do so was objectively unreasonable—i.e., a battle that
competent counsel would have fought.” Id.
¶14 	Establishing 	prejudice 	requires 	a 	defendant 	to
“demonstrate a reasonable probability that but for counsel’s
errors, the result would have been different.” State v. Perez, 2026
UT App 57, ¶ 11, 590 P.3d 688 (cleaned up), cert. denied, June 9,
2026 (No. 20260556). A “reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). In considering a defendant’s
prejudice argument, we “consider the counterfactual universe
in which the trial proceeded without the asserted errors and
ask 	whether 	it 	is 	reasonably 	likely 	that 	a 	different 	result
would have obtained but for those errors.” Perez, 2026 UT App 57,
¶ 11.
¶15 	To introduce the results of an Intoxilyzer breath test as
evidence, the government must make a threshold showing that
(1) 	a 	“trained 	technician” 	properly 	checked 	the 	Intoxilyzer
machine and confirmed that it “was in proper working condition
at the time of the test,” (2) a “qualified operator” administered the
test “correctly,” and (3) “a police officer observed the defendant
during the fifteen minutes immediately preceding the test to
ensure that the defendant introduced nothing into his or her
mouth during that time.” State v. Vialpando, 2004 UT App 95, ¶ 14,
89 P.3d 209. Regarding the third element—which is at issue in this
case—the government must show that (1) the defendant was “in
the officer’s presence” for the entire fifteen-minute observation
period, (2) the defendant had no clear “opportunity to ingest or
regurgitate anything” during that period, and (3) the officer’s
ability to observe the defendant during the period had not been
impeded by anything. Id. ¶ 18.

American Fork v. Barbour
20240929-CA 	9 	2026 UT App 107
¶16 	Barbour 	asserts 	that 	the 	City 	failed 	to 	meet 	the
foundational requirements to introduce the breath test evidence
under Baker because his fingernails were something that he
introduced into his mouth and Deputy failed to restart the fifteen-
minute observation clock after Barbour did so. Our courts have
not addressed whether Baker requires the clock to restart when
defendants chew their fingernails during the observation period,
and the parties do not point us to any non-Utah cases on the issue.
However, based on a straightforward application of Baker and its
Utah 	progeny, 	Barbour 	has 	established 	that 	Counsel 	was
ineffective in failing to object to the breath test evidence.
¶17 	Regarding deficient performance, the bodycam footage
shows Barbour biting his nails consistently for two straight
minutes during the observation period. We have watched the
video and would characterize this as no mere nibble, but rather
prolonged gnawing. Utah law makes clear that if the subject of a
breath test has placed anything into his or her mouth during this
time, the administering officer must restart the observation clock.
See, 	e.g., 	Vialpando, 	2004 	UT 	App 	95, 	¶ 	14 	(requiring 	the
government to make a threshold showing that “a police officer
observed the defendant during the fifteen minutes immediately
preceding the test to ensure that the defendant introduced nothing
into his or her mouth during that time” before an Intoxilyzer
result can be admitted at trial (emphasis added)). For these
reasons, Barbour is correct that his fingernails were something—
i.e., not “nothing,” see id.—that he introduced into his mouth
during the pretest period. Therefore, Deputy was required to
restart the fifteen-minute Baker clock.
¶18 	Against this backdrop, it was objectively unreasonable for
Counsel not to object to the admission of the breath test evidence.
Where Barbour’s only realistic possibility of acquittal on the DUI
charge was exclusion of the breath test, Counsel had no reason not
to move to suppress the evidence. The worst-case scenario for the
defense had the court not granted such a motion would have been
conviction, or what happened anyway. Therefore, moving to

American Fork v. Barbour
20240929-CA 	10 	2026 UT App 107
suppress the breath test was “a battle that competent counsel
would have fought” in this case. See Ray, 2020 UT 12, ¶ 32.7
¶19 	The City resists this conclusion, arguing that a motion to
suppress would have been futile because Deputy complied with
Baker when he administered the breath test. It’s true that a
showing of deficient performance cannot be predicated on a
failure to bring a futile motion. See, e.g., State v. Peterson, 2020 UT
App 47, ¶ 18, 462 P.3d 421. But for reasons we have already
explained, see supra ¶ 17, the City is mistaken in its argument that
Deputy 	complied 	with 	Baker. 	Again, 	Barbour 	introduced
something into his mouth for approximately two consecutive
minutes during the observation period, and it is plausible that he
ingested 	something 	when 	he 	did 	so. 	Therefore, 	the 	City’s
argument 	that 	Counsel’s 	performance 	on 	this 	issue 	was
objectively reasonable falls well short of the mark.
¶20 	On the prejudice prong, Barbour points to the DUI statute
to 	argue 	that, 	without 	the 	breath 	test 	evidence, 	there 	is 	a
reasonable probability that he would not have been convicted.
Under the statute,
An actor commits driving under the influence if the
actor operates or is in actual physical control of a
vehicle within this state if the actor:
7. Frequently, the reasonableness of a lawyer’s decision not to
object or make a motion has to do with how the action could affect
the jury. See, e.g., West Valley City v. Drawn, 2025 UT App 198, ¶ 25,
583 	P.3d 	1129 	(describing 	the 	“pink-elephant 	paradox,” 	a
phenomenon that can arise when jurors think about the thing they
are specifically told not to think about (cleaned up)). Fighting the
battle of suppressing the breath test would not have implicated
that issue here, however, because Counsel could have and should
have filed a motion to suppress outside of the jury’s presence
prior to trial.

American Fork v. Barbour
20240929-CA 	11 	2026 UT App 107
(a) has sufficient alcohol in the actor’s body
that a subsequent chemical test shows that
the 	actor 	has 	a 	blood 	or 	breath 	alcohol
concentration of .05 grams or greater at the
time of the test;
(b) is under the influence of alcohol, any
drug, or the combined influence of alcohol
and any drug to a degree that renders the
actor incapable of safely operating a vehicle;
or
(c) 	has 	a 	blood 	or 	breath 	alcohol
concentration of .05 grams or greater at the
time of operation or actual physical control.
Utah Code § 41-6a-502(1). Without the breath test, the City could
not have used either subsection (a) or subsection (c) to convict
Barbour in this case.
¶21 	This leaves subsection (b), which required the City to show
that Barbour was under the influence of alcohol such that he was
unable to safely operate his vehicle. Assuming the breath test had
been suppressed, the evidence to support a conviction under
subsection (b) was (1) Barbour’s admission that he had two beers
and two shots on the night of the incident, (2) evidence that
officers smelled alcohol on his breath after the initial stop,
(3) Deputy’s testimony about how Barbour had been driving
before the traffic stop, and (4) the clues of impairment from the
FSTs. Barbour invokes State v. Harvey, 2019 UT App 108, 446 P.3d
125, to argue that there is a reasonable probability that, absent the
breath test evidence, he would not have been convicted under
subsection (b). On this evidence, we agree with Barbour.
¶22 	In Harvey, the defendant was driving at night with his
lights off when he was pulled over. Id. ¶ 2. During the stop, the
officer smelled “a strong odor of an alcoholic beverage emanating

American Fork v. Barbour
20240929-CA 	12 	2026 UT App 107
from the vehicle,” “saw a passenger attempting to hide a half-
consumed 	bottle 	of 	vodka,” 	and 	noticed 	that 	one 	of 	the
defendant’s eyes “appeared to be glassy and bloodshot.” Id. ¶ 3
(cleaned up). The officer then administered three FSTs, and the
defendant failed two of them. Id. ¶¶ 5–6, 26. The defendant
declined a breath test, so the officer got a warrant for a blood
draw. Id. ¶ 6. The defendant’s blood “was subjected to two
identical tests—a screening test and a confirmation test—with
each test producing two results.” Id. The screening tests showed
BACs of .075 and .076, and the confirmation tests both showed
BACs of .081.8 Id. The defendant was then charged with DUI. Id.
¶ 7.
¶23 	Over the defendant’s objection at trial, the district court
allowed a police officer to testify, “based on information he [had]
received in his police training, about the human body’s average
rate of elimination of alcohol—the ‘burn-off rate.’” Id. ¶ 1. The
defendant was convicted of DUI and filed a motion for a new trial,
arguing that the police officer improperly “gave expert testimony
as a lay witness” about alcohol burn-off rates. Id. The court denied
the motion. Id.
¶24 	On appeal, we concluded that the court should have
suppressed the officer’s testimony. See id. ¶ 20. Because the
practical effect of this holding was a determination that the
question of defendant’s potential violation of subsection (c) of the
statute should not have gone to the jury, we turned to whether
there was enough evidence apart from the officer’s testimony to
establish that the defendant “was incapable of safely operating a
8. When the defendant in Harvey was charged, the government
had to prove that he had a BAC level of at least .08 to secure a
conviction under either subsection (a) or (c). See State v. Harvey,
2019 UT App 108, ¶ 7, 446 P.3d 125. The DUI statute has since been
amended to reduce the threshold to .05 for both provisions.
Compare Utah Code § 41-6a-502(1)(a), (c) (2026), with id. § 41-6a-
502(1)(a), (c) (2016).

American Fork v. Barbour
20240929-CA 	13 	2026 UT App 107
vehicle” under subsection (b). See id. ¶ 22. We identified three
cases where a driver had been convicted of DUI under that
provision, and the common thread in each was “the presence of
some evidence of the driver’s incapacity to operate the vehicle
safely.” Id. ¶ 23. We included parenthetical explanations in which
we highlighted the evidence that sufficed to support a conviction
under subsection (b).
• 	In one case, the defendant (1) created “a traffic hazard by
driving considerably below the speed limit,” (2) was not
responsive 	to 	an 	officer’s 	attempts 	to 	pull 	her 	over,
(3) performed poorly on FSTs, (4) maintained “an intent
focus straight ahead” during the stop, (5) had “very droopy
eyelids,” and (6) was confused about why she was stopped.
See id. (cleaned up) (citing State v. Salgado, 2018 UT App
139, ¶¶ 33–35, 37, 427 P.3d 1228).
• 	In another case, the defendant (1) slurred his speech and
had glazed eyes, (2) had been incoherent and unsteady,
(3) was unable to “control his actions” and demonstrated
“impaired 	judgment,” 	and 	(4) 	exhibited 	“boisterous
behavior before driving.” See id. (cleaned up) (citing State
v. Van Dyke, 2009 UT App 369, ¶¶ 12–13, 15, 36–37, 223 P.3d
465).
• 	In a third case, the defendant (1) had the “odor of alcohol”
on 	his 	breath, 	(2) 	performed 	poorly 	on 	three 	FSTs,
(3) admitted that “he had consumed two or three beers,”
(4) “sway[ed] during and between [the] FSTs,” (5) showed
“difficulty in maintaining his balance,” and (6) had been
“chatt[y].” See id. (citing Rosengreen v. State, Dep’t of Public
Safety, 2003 UT App 183U, para. 5).
¶25 	Applying those cases, we concluded that the non-BAC
evidence was not enough to affirm the defendant’s conviction
under subsection (b). See id. ¶¶ 24–29. Among other things, the
defendant had not been driving erratically, had not been slurring

American Fork v. Barbour
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his speech when he was stopped, had kept his balance when he
got out of the car, and had not struggled to comply with the
officer’s orders regarding the FSTs. Id. ¶ 24. And while the
defendant had undeniably been drinking before he was pulled
over, the circumstances did not indicate that he was so impaired
as to be incapable of safely operating a vehicle. Id. ¶ 25. Finally,
the defendant’s failing two of the three FSTs could not support
affirmance 	under 	subsection 	(b). 	Id. 	¶ 	26. 	Regarding 	the
defendant’s failed horizontal gaze nystagmus test, we explained
that it merely showed that he had alcohol in his system—not that
he was incapable of driving safely—because the defendant passed
the vertical gaze nystagmus test. Id. The combined effect of these
two tests demonstrated that the defendant had been drinking but
that, “at the very most,” there was not a significant amount of
alcohol present in his system. Id. Finally, we concluded that it was
entirely possible that the defendant failed the walk-and-turn test
not because he had been drinking but because he had previously
suffered serious injuries to both legs—namely, a shark bite and a
bullet wound. Id. ¶ 27. For these reasons, we determined that the
evidence of the defendant’s impairment was “weak” and found a
reasonable likelihood that the jury would not have convicted had
the officer’s improper testimony been excluded at trial. Id. ¶ 29.
¶26 	We come to a similar conclusion here. While the left side of
Barbour’s car crossed into the median, it did so only once and only
briefly. A jury could hardly be faulted were it to determine that
this did not create a traffic hazard. See id. ¶ 23. Moreover, Barbour
pulled over shortly after Deputy activated his siren, and during
the initial encounter, Deputy did not smell alcohol on Barbour’s
breath. Nor was there testimony at trial that Barbour had slurred
his speech, had droopy eyelids, had been moving lethargically, or
otherwise could not control his actions or maintain his balance
during the traffic stop. And while Deputy noted that Barbour had
exhibited some clues of impairment during the FSTs, Deputy did
not testify at trial what those clues were. See id. ¶¶ 26–28 (holding
that evidence of the defendant’s failed FSTs, “standing alone,”

American Fork v. Barbour
20240929-CA 	15 	2026 UT App 107
was 	insufficient 	to 	support 	a 	conviction 	under 	subsection
(b) because it showed only that the defendant had consumed
alcohol and because FSTs are generally understood to estimate
BAC, “not the degree of incapacity”). Nor, for that matter, did the
City grapple with how the evidence of Barbour’s need to use the
bathroom may have affected his performance on the FSTs. Finally,
Barbour admitted to consuming two beers and two shots on the
night of the stop. But Harvey all but states that a defendant’s
drinking prior to being pulled over, standing alone, is not enough
to convict under subsection (b). See id. ¶ 25. Indeed, without far
more evidence about when the drinks were consumed and other
biological factors not in evidence here, the mere fact of having
consumed alcohol at some point establishes neither blood alcohol
level nor impairment. Under these circumstances, we conclude
that there was a reasonable probability of a different result had
the breath test evidence been excluded at trial.
¶27 	For 	these 	reasons, 	Barbour 	has 	met 	his 	burden 	to
demonstrate that he was deprived of constitutionally effective
assistance of counsel and is entitled to a new trial.
CONCLUSION
¶28 	Counsel performed deficiently by not moving to suppress
the breath test evidence in this case because Barbour’s fingernails
were something that he placed into his mouth during the Baker
pretest observation period. And because Counsel’s failure to
make a motion to address this issue was prejudicial to the defense,
Barbour has demonstrated that he was deprived of effective
assistance in the proceedings below. We therefore reverse his DUI
conviction and remand the matter to the district court for a new
trial on the charge.