State v. Spencer

2025 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DEAN MARSHALL SPENCER,
Appellant.

Opinion
No. 20230863-CA
Filed May 8, 2025

Fourth District Court, American Fork Department
The Honorable Denise Porter
No. 191101244

Jennifer L. Foresta, Attorney for Appellant
Derek E. Brown and Alexandra Herlong,
Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1 During a traffic stop, a Utah County Sheriff’s deputy
(Deputy) smelled a strong odor of alcohol coming from Dean
Marshall Spencer’s vehicle. Deputy arrested Spencer after finding
open containers of alcohol in Spencer’s vehicle and observing
signs of impairment. When results from a blood draw indicated
his blood alcohol concentration was above the legal limit, Spencer
was charged with driving under the influence of alcohol (DUI).
Spencer had an independent laboratory retest his blood sample
before trial, and the laboratory results placed Spencer’s blood
alcohol concentration below the legal limit. Despite presenting the
results of the independent laboratory test at his bench trial,
Spencer was convicted of DUI. Spencer appeals, asserting there
State v. Spencer

was insufficient evidence to prove beyond a reasonable doubt that
he was guilty of DUI. Because Spencer has not met his burden on
appeal of demonstrating there was insufficient evidence to
support his conviction for DUI, we affirm.

BACKGROUND 1

The Traffic Stop

¶2 While driving one morning in August 2018, Spencer made
a right-hand turn when he had a red light at an intersection that
had a posted sign prohibiting right turns when the traffic light
was red. Deputy observed Spencer make the turn and initiated a
traffic stop of Spencer’s vehicle. Spencer pulled over, and Deputy
approached the passenger side of Spencer’s vehicle. When
Spencer rolled down the window, Deputy smelled a strong order
of alcohol coming from the interior. Deputy then asked Spencer
“if he had been drinking [or] had any open containers in the
vehicle,” and in response Spencer shrugged his shoulders.
Deputy informed Spencer that he believed “there was an open
container or freshly spilled alcohol in the car” because the alcohol
odor was so strong. Deputy also noticed that Spencer’s eyelids
appeared to be droopy. After Deputy again asked Spencer if there
was an open container of alcohol in the vehicle and told Spencer
he had “probable cause to search the vehicle,” Spencer responded,
“Well, you’ll have to search.” Deputy then asked Spencer to exit
the vehicle and walk to the back of the car. Spencer complied.

¶3 When Deputy asked Spencer to move to the front of the
vehicle so Deputy could “keep an eye on him” and search the
vehicle, Spencer refused, so Deputy detained him in his patrol

1. “On appeal from a bench trial, we view the evidence in the light
most favorable to the district court’s findings.” State v. Jok, 2021
UT 35, ¶ 3 n.3, 493 P.3d 665.

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State v. Spencer

vehicle. Deputy then searched Spencer’s vehicle and found an
open beer can and a large drink mug that smelled of alcohol,
which Deputy believed contained a mixture of alcohol and soda.
Deputy also found several empty beer cans and a half-empty
bottle of vodka in the trunk of Spencer’s car.

¶4 After searching the vehicle, Deputy went to his patrol car,
informed Spencer of what he found, and “requested that he
submit to field sobriety tests.” Spencer did not respond to
Deputy’s request. Deputy then arrested Spencer because he
believed he “was impaired” and “not capable of safely driving a
motor vehicle.” Deputy transported Spencer to the Utah County
Jail.

¶5 At the jail, Deputy asked Spencer to submit to a blood
draw, but Spencer did not respond to his request, so Deputy
requested a warrant for the blood draw. The warrant was
approved, and Spencer’s blood was drawn shortly after. The
blood sample was sent to the Utah Public Health Laboratories (the
State Lab). A toxicologist (State Toxicologist) at the State Lab
analyzed the blood on August 23, 2018, and got two results: .08479
and .08437 grams of ethanol per 100 milliliters of blood. The State
Lab’s accreditation required that formal results of blood alcohol
tests be reported to the hundredths place without rounding, so
State Toxicologist formally reported a result of .08 grams of
ethanol per 100 milliliters of blood.

¶6 Spencer had his blood sent to an accredited forensic
laboratory in Colorado (the Colorado Lab), which tested the blood
in February 2020. The Colorado Lab’s test produced results of .079
grams of ethanol per 100 milliliters of blood.

The Charges and Bench Trial

¶7 Spencer was later charged with DUI with prior convictions,
a third-degree felony, and an open container in a vehicle, a class

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State v. Spencer

C misdemeanor. 2 After many delays due to the COVID-19
pandemic, Spencer’s case proceeded to a bench trial in August
2023.

¶8 The State called two witnesses, Deputy and State
Toxicologist, during its case in chief. Deputy testified about the
traffic stop and subsequent arrest of Spencer as described above.
State Toxicologist testified to the results of the test of Spencer’s
blood sample as described above. The final toxicology report from
the State Lab was admitted as an exhibit. State Toxicologist also
testified that for blood alcohol tests like the one she administered
on Spencer’s blood sample, there is typically a variation of plus or
minus 5% between different results.

¶9 Spencer called the Colorado Lab’s owner and acting
director (Director) in his case in chief. Director testified about the
results of the blood test as described above. Director also testified
that there is not a statistically significant difference between
results of .079 and .08 grams of ethanol per 100 milliliters of blood.
Spencer also had the report of the blood test done by the Colorado
Lab admitted as an exhibit. When asked if the Colorado Lab’s
result confirmed the result of the State Lab, Director testified that
it confirmed the State’s test result “within their measurement [of]
uncertainty.”

¶10 During closing arguments, the State argued that Spencer
was guilty of a per se DUI because of the State Lab blood alcohol
result of .08, and because Director testified that the difference

2. Because the traffic stop and subsequent arrest occurred in
August 2018 before the lower threshold for intoxication went into
effect on December 30, 2018, see Act of Mar. 8, 2017, ch. 283, § 3,
2017 Utah Laws 1342, 1343, .08 grams of ethanol per 100 milliliters
of blood is the applicable intoxication threshold for a per se DUI
in this case.

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State v. Spencer

between the results of the State Lab and Colorado Lab tests were
statistically identical.

¶11 Defense counsel argued the State did not prove beyond a
reasonable doubt that Spencer’s blood alcohol concentration was
.08 or above because two tests were performed on the same blood
sample, and one produced a result above the legal limit and one
below. Defense counsel also argued that because the State did not
present any evidence that Spencer had prior convictions, even if
the court did find beyond a reasonable doubt that Spencer’s blood
alcohol concentration was .08, the court could convict only on a
class B misdemeanor rather than a third-degree felony.

¶12 The district court, agreeing with Spencer’s argument
regarding prior convictions, found Spencer guilty of DUI, a class
B misdemeanor, and having an open container in a vehicle, a class
C misdemeanor. 3 The district court found Spencer guilty of DUI
because the two experts agreed that the difference between the
test results was not statistically significant, and confirmed the
State Lab’s result of .08, which was sufficient to convict Spencer
of a per se DUI. The district court further stated that “no test is 100
percent perfect,” and that it “can only act on what the Legislature
tells [it] to act on, which is that . . . a .08 . . . [is] in fact at that per
se DUI level.” Spencer was sentenced to 180 days in jail with all
but two days suspended and given two days credit for time
served, issued a $1,460 suspended fine for the DUI conviction, and
issued a $100 fine for the open container conviction.

ISSUE AND STANDARD OF REVIEW

¶13 On appeal, Spencer asserts that there was insufficient
evidence to prove beyond a reasonable doubt that he was guilty

3. Spencer is not challenging the open container conviction on
appeal.

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State v. Spencer

of a per se DUI. A “claim of insufficient evidence at a bench trial”
is reviewed “for clear error.” State v. Ayala, 2022 UT App 1, ¶ 15,
504 P.3d 755.

ANALYSIS

¶14 “When reviewing a bench trial for sufficiency of the
evidence, we must sustain the trial court’s judgment unless it is
against the clear weight of the evidence, or if we otherwise reach
a definite and firm conviction that a mistake has been made.” State
v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (cleaned up). “An
example of an obvious and fundamental insufficiency is the case
in which the State presents no evidence to support an essential
element of a criminal charge.” State v. Schroeder, 2023 UT App 57,
¶ 17, 531 P.3d 757 (cleaned up).

¶15 For Spencer to be convicted of a per se DUI, the State must
prove beyond a reasonable doubt that Spencer “operate[d] or
[was] in actual physical control of a vehicle” and “that a
subsequent chemical test show[ed] that [Spencer] ha[d] a blood or
breath alcohol concentration of .08 grams or greater at the time of
the test.” Utah Code § 41-6a-502 (2018). The State presented
sufficient evidence to support these required elements. 4

¶16 In the State’s case in chief, State Toxicologist testified that
Spencer’s blood alcohol concentration at the time of the test was
.08 grams per 100 milliliters of blood. The State Lab’s final
toxicology report that reported Spencer’s blood alcohol
concentration as .08 was admitted as an exhibit. Even though
Spencer presented evidence through the testimony of Director
and the admission of exhibits that showed that the Colorado Lab’s
test produced a result of .079, Spencer did not introduce any

4. Spencer does not dispute that he operated or was in actual
physical control of a vehicle at the time of the traffic stop.

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State v. Spencer

evidence that invalidated the test results presented by the State.
In fact, Spencer’s expert, Director, testified that the difference
between the two test results was not statistically significant. And
because Spencer did not undermine or invalidate the results of the
State Lab’s test, the factfinder was presented with two valid tests
to consider and weigh in deciding if Spencer was guilty of a per
se DUI.

¶17 It is widely accepted that “weighing the evidence” and
choosing “between conflicting evidence” is exclusively the role of
the factfinder. State v. Lyden, 2020 UT App 66, ¶ 14, 464 P.3d 1155.
And appellate courts are “not normally in the business of
reassessing or reweighing evidence.” State v. Prater, 2017 UT 13,
¶ 32, 392 P.3d 398. Therefore, because it is the factfinder’s
responsibility to determine “which evidence to believe when
conflicting evidence is presented,” merely identifying
inconsistent or contradictory evidence that was presented “is
generally not sufficient to overturn a verdict.” Layton City v. Carr,
2014 UT App 227, ¶ 10, 336 P.3d 587.

¶18 The State presented evidence that Spencer had a blood
alcohol concentration of .08 and that he operated a vehicle, thus
satisfying all the elements required to convict Spencer of a per se
DUI. And while Spencer presented evidence that provided a
different result than the State Lab’s test, this evidence did not
invalidate the State’s evidence that his blood alcohol
concentration was .08. Instead, Spencer’s expert testified that the
Colorado Lab’s results confirmed the State Lab’s results “within
their measurement [of] uncertainty” and that there was not a
statistically significant difference between the two test results.

¶19 Thus, the district court was presented with two valid but
conflicting blood tests, one that placed Spencer’s blood alcohol
concentration above the legal limit and one that placed it just
below. Both test results could fairly be considered by the
factfinder, who was responsible for weighing and assessing the

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State v. Spencer

conflicting evidence. See State v. Wall, 2020 UT App 36, ¶ 57, 460
P.3d 1058 (holding that when two experts come to “different
conclusions from [the] same evidence, the weight to be given to
such conflicting expert opinions is solely the province of the
[factfinder]”). The district court considered both test results and
accepted the result of the State Lab’s test.

¶20 Here, “we cannot conclude that reasonable minds must
have entertained a reasonable doubt about the essential elements
of the” per se DUI charge. State v. Plexico, 2016 UT App 118, ¶ 18,
376 P.3d 1080 (cleaned up). Given that Spencer’s own expert
confirmed that the Colorado Lab’s result of .079 was not a
statistically significant difference from the State Lab’s result of .08
and was “within the [State Lab’s] measurement [of] uncertainty,”
Spencer has failed to meet his burden of demonstrating that the
district court’s decision was against the clear weight of the
evidence. Thus, we are not persuaded that any mistake was made.

CONCLUSION

¶21 Sufficient evidence supported the district court’s finding
that Spencer’s blood alcohol concentration was .08, and that he
was therefore guilty of a per se DUI. Accordingly, we affirm
Spencer’s conviction.

20230863-CA 8 2025 UT App 66