State v. Cook

2017 UT App 8

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ELIZABETH VICTORIA COOK,
Appellant.

Memorandum Decision
No. 20150847-CA
Filed January 12, 2017

Fifth District Court, Cedar City Department
The Honorable Thomas M. Higbee
No. 155500004

Matthew D. Carling, Attorney for Appellant
Scott Garrett and Chad E. Dotson, Attorneys
for Appellee

JUDGE GREGORY K. ORME authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.

ORME, Judge:

¶1 Elizabeth Victoria Cook appeals her conviction for driving
under the influence of alcohol with a passenger under sixteen
years of age, a class A misdemeanor. See Utah Code Ann. §§ 41-
6a-502(1)(a), -503(1)(b)(ii) (LexisNexis 2010). Cook raises three
claims on appeal, none of which are meritorious. We affirm.

¶2 While responding to an unrelated report of an abandoned
vehicle, an officer observed an ATV traveling at high speed on a
State v. Cook

snow-covered road.1 The officer saw three individuals on the
ATV: a ten-year-old child in the front, Cook in the middle, and
an eighteen-year-old male in the back. The officer also noticed
that Cook was holding a beer can in one hand and the
handlebars with the other. The officer pulled the ATV over.

¶3 When the officer approached the ATV, the beer can had
disappeared. Although she denied having consumed alcohol
that day, Cook smelled of alcohol, behaved belligerently, and
slurred her words. Eventually, the officer found an open, half-
consumed can of beer in the snow, which the male told him
belonged to Cook. The officer then found another can of beer in
Cook’s pocket.

¶4 After being arrested and transported to the Iron County
Jail, Cook submitted to standard sobriety tests and a chemical
breath test. Cook failed the sobriety tests and had a breath
alcohol concentration (BAC) of .119 grams, well over the legal
limit of .08. See Utah Code Ann. § 41-6a-502(1)(a) (stating that
‚*a] person may not operate or be in actual physical control of a
vehicle‛ if a test reveals that a person ‚has a blood or breath
alcohol concentration of .08 grams or greater‛). Cook was
charged with driving under the influence of alcohol with a
passenger under the age of sixteen. Following a bench trial,
Cook was convicted and sentenced.

¶5 Cook makes three arguments on appeal. First, she argues
that she was not in ‚actual physical control‛ of the ATV because
the child was driving. ‚*W+e review the trial court’s conclusion

1. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings, and therefore recite
the facts consistent with that standard.‛ Lake Philgas Service v.
Valley Bank & Trust Co., 845 P.2d 951, 953 n.1 (Utah Ct. App.
1993).

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State v. Cook

that [Cook] was in actual physical control of the vehicle for
correctness.‛ See In re C.L., 2004 UT App 229U, para. 1. Second,
she argues that the trial court erroneously admitted the results of
her breathalyzer test. ‚We review a trial court’s decision to
admit or preclude evidence‛ for an abuse of discretion. State v.
Vialpando, 2004 UT App 95, ¶ 8, 89 P.3d 209. Third, Cook claims
that her trial counsel rendered constitutionally ineffective
assistance. ‚An ineffective assistance of counsel claim raised for
the first time on appeal presents a question of law, which we
review for correctness.‛ State v. Wyman, 2013 UT App 93, ¶ 5, 300
P.3d 1285 (citation and internal quotation marks omitted).

¶6 In Utah, a person may not legally be in ‚actual physical
control of a vehicle‛2 if the person ‚has sufficient alcohol in the
person’s body that a subsequent chemical test shows that the
person has a blood or breath alcohol concentration of .08 grams
or greater at the time of the test.‛3 Utah Code Ann. § 41-6a-
502(1)(a) (LexisNexis 2010) (emphasis added). Cook first claims
that she was not in ‚actual physical control‛ of the ATV because

2. The term ‚motor vehicle‛ includes ‚off-highway vehicle*s+,‛
such as ATVs. See Utah Code Ann. § 41-22-2(11)(b) (LexisNexis
2010).

3. Cook asserts that the State was required to establish that she
had a BAC above .08 grams at the time she was in ‚actual
physical control‛ of the vehicle. But this is incorrect. Utah’s DUI
statute ‚plainly does not require the State to establish that a
person had a BAC of .08 or greater at the time he or she operated
or controlled a vehicle.‛ State v. Manwaring, 2011 UT App 443,
¶ 34, 268 P.3d 201. Rather, the State must establish that a
defendant had a BAC of .08 grams or greater ‚at the time of the
subsequent chemical test.‛ Id. This is a reasonable statutory
provision given the tendency of an alcohol concentration to
dissipate over time.

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State v. Cook

the child was driving. We consider whether Cook was in actual
physical control of the vehicle by examining ‚the totality of the
circumstances.‛ See Vialpando, 2004 UT App 95, ¶ 22 (citation and
internal quotation marks omitted).

¶7 In its ordinary sense, the term ‚actual physical control‛
means ‚existing or present bodily restraint, directing influence,
domination or regulation.‛ State v. Bugger, 483 P.2d 442, 443
(Utah 1971) (citation and internal quotation marks omitted). ‚A
person need not actually move, or attempt to move, a vehicle in
order to have actual physical control; the person only needs to
have ‘the apparent ability to start and move the vehicle.’‛ State v.
Barnhart, 850 P.2d 473, 477 (Utah Ct. App. 1993) (quoting Garcia
v. Schwendiman, 645 P.2d 651, 654 (Utah 1982)). Because ‚there is
a distinction between operating a vehicle and having actual
physical control of a vehicle, a person need not operate, or
attempt to operate, a vehicle before he or she may be found to be
in actual physical control.‛ Id. at 479.

¶8 Cook claims that she had her hands on the handlebars for
the sole purpose of protecting the ten-year-old while the vehicle
came to a halt. Even if we assume that this is true and that Cook
had some similar purpose when the officer saw her speeding
along with one hand on the handlebars, Cook nonetheless had
actual physical control of the vehicle. According to the child’s
trial testimony, Cook assisted in steering by guiding the child’s
shoulders. The child testified that Cook helped her steer ‚at
first‛ because she ‚almost crashed.‛ Thus, we conclude, under
the totality of the circumstances, that Cook’s conduct qualified as
actual physical control over the vehicle even if the child was
driving.

¶9 Second, Cook contends that the trial court erroneously
admitted the breathalyzer test results, arguing that the officer
improperly administered the test. Before presenting evidence of
breathalyzer results, the State must demonstrate that

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State v. Cook

(1) the [breathalyzer] machine had been properly
checked by a trained technician, and that the
machine was in proper working condition at the
time of the test; (2) the test was administered
correctly by a qualified operator; 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.

¶10 Cook argues that the requirement for a fifteen-minute
observation period was not met, because the officer used his
phone to start the fifteen-minute observation period and used
the breathalyzer to mark the end of it. Thus, according to Cook,
the two separate devices may not have been synchronized and
the requisite minimum observation period may not have been
satisfied. The administering officer’s trial testimony, credited by
the trial court, dispels this argument. The officer explained that
the breathalyzer uses a fifteen-minute timer that starts when the
officer enters the necessary information. Here, the officer
testified that the machine was working properly when he
entered the necessary information, that he observed more than
the requisite waiting period as marked by the breathalyzer, and
that he properly administered the test. Accordingly, we conclude
that the trial court did not abuse its discretion in admitting the
breathalyzer test results.

¶11 Finally, Cook argues that her trial counsel rendered
constitutionally ineffective assistance by failing to more
thoroughly develop the motion to suppress. ‚To establish
ineffective assistance of counsel, a defendant must demonstrate
both that counsel’s performance was deficient . . . and that
counsel’s deficient performance was prejudicial.‛ State v. Perry,
2009 UT App 51, ¶ 11, 204 P.3d 880 (citation and internal

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State v. Cook

quotation marks omitted). ‚Failing to file a futile motion does
not constitute ineffective assistance of counsel.‛ State v. Heywood,
2015 UT App 191, ¶ 48, 357 P.3d 565.

¶12 Cook’s trial counsel filed a pretrial motion to suppress,
claiming that the breathalyzer results were inadmissible. And at
trial, counsel objected to the breathalyzer results because the
officer had purportedly used two separate timepieces when he
administered the test. Cook claims that her trial counsel was
ineffective because he failed to thoroughly articulate that
objection in the pretrial motion to suppress. Because we
conclude that the admissibility requirements regarding the
breathalyzer results were satisfied, a more fully developed
motion to suppress, premised on this theory, would not have
succeeded. Therefore, Cook’s trial counsel was not ineffective
when he failed to more fully develop a futile argument in the
motion to suppress.

¶13 Affirmed.

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