State v. Harvey

2019 UT App 108
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R ANDY LYNN HARVEY ,
Appellant.
Opinion
No. 20170733-CA
Filed June 20, 2019
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 161903234
Emily Adams, Attorney for Appellant
Sean D. Reyes and Lindsey L. Wheeler, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA H AGEN concurred.
MORTENSEN, Judge:
¶1 	A 	police 	officer 	(Officer) 	testified 	at 	trial, 	based 	on
information he received in his police training, about the human
body’s average rate of elimination of alcohol—the “burn-off
rate.” Randy Lynn Harvey, who was standing trial for driving
under the influence (DUI), objected for lack of foundation. The
district court overruled the objection, and a jury found Harvey
guilty. Harvey subsequently filed a motion for a new trial,
asserting that Officer gave expert testimony as a lay witness. The
district 	court 	denied 	the 	motion. 	Harvey 	appeals, 	and 	we
reverse.

State v. Harvey
20170733-CA 	2 	2019 UT App 108
BACKGROUND
The Arrest
¶2 	Around one o’clock in the morning in late November
2015, Officer, a fourteen-year police veteran with advanced
roadside impairment training and about 200 DUI arrests under
his belt, spotted a pickup truck traveling without its taillights
illuminated 	and 	initiated 	a 	traffic 	stop 	by 	turning 	on 	his
overhead lights. Harvey, who was driving the truck, continued
for about one block and stopped at a red light as Officer, with his
patrol car’s lights still flashing, followed him. Harvey proceeded
through the light after it had turned green, travelled another half
block, and then pulled over, bringing the truck to a stop. Officer
noted that the street was “pretty dead” and that there was “quite
a bit of parking [at] that time of night on the side of the road.”
¶3 	When Officer approached the truck, Harvey rolled down
the window about two inches, but he did not look Officer in the
eye. Officer observed that Harvey’s left eye “appeared to be
glassy and bloodshot.” Officer also detected “a strong odor of an
alcoholic beverage emanating from the vehicle” and saw a
“passenger attempting to hide a . . . half-consumed [bottle of]
vodka . . . in a bag behind her seat.” When asked, Harvey denied
that he had been drinking.
¶4 	Officer 	requested 	that 	Harvey 	perform 	several 	field
sobriety tests (FST). Officer recalled that Harvey appeared to
have good balance when he exited his vehicle to take the FSTs.
But with regard to his ability to perform the FSTs, Harvey
advised Officer that (1) he had a titanium ankle replacement
because he had been shot with a .40 caliber bullet in one leg and
(2) he had been bitten in the calf on the other leg by a shark
when he was a child.
¶5 	Officer had Harvey perform three standardized FSTs. The
first was the horizontal gaze nystagmus test (HGN test). In

State v. Harvey
20170733-CA 	3 	2019 UT App 108
administering the HGN test, Officer noticed six out of a possible
six indicators that Harvey had alcohol in his system. Officer next
administered the vertical gaze nystagmus test (VGN test), but
Harvey’s 	performance 	during 	this 	test 	did 	not 	show 	any
indicators of the presence of alcohol. At trial, Officer testified
that the VGN test detects when someone has a high level of
alcohol in his blood. The third FST was the walk-and-turn test,
which Harvey had indicated he could probably complete despite
his injuries, but he advised Officer that “numbness” in his calf
would “prevent him from feeling when his feet touched heel to
toe.” Officer recalled telling Harvey that he “would take that
into 	consideration.” 	Harvey’s 	performance 	during 	this 	test
showed six out of eight possible indicators of the presence of
alcohol 	in 	his 	system. 	Because 	Harvey’s 	prior 	leg 	injuries
prevented him from performing the last standardized FST—the
one-leg-stand 	test—Officer 	opted 	to 	have Harvey recite 	the
letters of the alphabet and count backward. Harvey performed
both tests without error.
¶6 	Based on Harvey’s performance on the walk-and-turn
and HGN tests and the odor of the alcoholic beverage, Officer
arrested him for DUI. After transporting Harvey to the police
station, Officer requested that Harvey take a breath test to
determine his blood alcohol content (BAC). Even after being
warned that refusal to take the test may result in the loss of his
driver license, Harvey refused to submit to it. Officer then
obtained a search warrant to collect Harvey’s blood for testing,
and a sample was drawn at about three o’clock in the morning,
two hours after Harvey was pulled over. Harvey’s blood was
subjected 	to 	two 	identical 	tests—a 	screening 	test 	and 	a
confirmation test—with each test producing two results. The
screening test measured Harvey’s BAC at .075 and .076. The
confirmation test yielded two BAC results of .081.
¶7 	The State charged Harvey with DUI. Under Utah law,
Harvey 	could 	be 	found 	guilty 	of 	DUI 	if 	(a) 	a 	subsequent
chemical test showed that he had a BAC of .08 or greater at the

State v. Harvey
20170733-CA 	4 	2019 UT App 108
time of the test, (b) he was under the influence of alcohol to a
degree that rendered him incapable of safely operating a vehicle,
or (c) he had a BAC of .08 or greater while operating a vehicle.
Utah Code Ann. § 41-6a-502(1) (LexisNexis 2014). In Harvey’s
case, the DUI was charged as a third-degree felony based on two
prior DUI convictions within the last ten years. See id. § 41-6a-
503(2)(b).
The Trial
¶8 	The State’s forensic scientist testified that he could not
“rule out the possibility” that Harvey’s BAC was below .08 at the
time it was tested. He stated that the tests he ran indicated that
Harvey’s 	BAC 	would 	have 	been 	“around 	[.07 	or 	.08] 	and
probably within those two numbers.”
¶9 	In addition to recounting the details of the arrest, Officer
testified 	that 	“the 	average 	burn-off 	rate 	[for 	alcohol] 	is
approximately .015” per hour. Harvey’s counsel immediately
objected to this testimony for lack of foundation. The court asked
the State to “lay some foundation with respect to how [Officer]
would know” about alcohol burn-off rates. Officer testified that
he learned about how the body burns off alcohol in his training
at the police academy. Harvey’s counsel again objected, but the
court overruled the objection, stating, “[I]f this is something he
learned in [the police academy], he can testify to it. It goes to the
weight.” On cross-examination, Officer stated that he could not
calculate 	Harvey’s 	precise 	alcohol 	burn-off 	rate 	and 	could
provide only the average because rates depend on weight,
gender, and what someone has eaten.
¶10 	At the close of the State’s case, Harvey moved for a
directed verdict because the State’s forensic scientist testified
that Harvey’s BAC may have been below .08 and because Officer
did not notice a pattern of unsafe driving. Based on the forensic
scientist’s testimony, the district court determined that there was
“a real probability” that Harvey’s BAC was under .08. Thus, the

State v. Harvey
20170733-CA 	5 	2019 UT App 108
court granted the motion in part, finding that a reasonable jury
could not find Harvey’s BAC was .08 or higher at the time of the
blood test. But the district court allowed the case to proceed to
the 	jury 	on 	the 	other 	two 	prongs 	of 	the 	statute, 	namely
(1) whether Harvey was under the influence of alcohol to a
degree that rendered him incapable of safely operating a vehicle
or (2) whether Harvey had a BAC of .08 or greater while
operating a vehicle. See Utah Code Ann. § 41-6a-502(1)(b)–(c).
The jury found Harvey guilty.
¶11 	Subsequently, Harvey moved for a new trial, arguing that
Officer’s burn-off-rate testimony was improper expert testimony
from 	a 	lay 	witness. 	The 	district 	court 	denied 	the 	motion,
explaining that Officer had “sufficient training and expertise to
relay the information” that he had learned in the police academy
“about the average blood alcohol dissipation rate.” The district
court imposed a suspended prison sentence and placed Harvey
on supervised probation. Harvey appeals.
ISSUE AND STANDARD OF REVIEW
¶12 	The issue presented on appeal is whether the district
court erred in admitting Officer’s burn-off-rate testimony. “A
decision to admit or exclude expert testimony is left to the
discretion of the [district] court, and that decision will not be
reversed unless it constitutes an abuse of discretion.” Belnap v.
Graham, 2016 UT App 14, ¶ 8, 366 P.3d 852 (cleaned up). And
“[e]ven 	if 	we 	determine 	the 	testimony 	was 	erroneously
admitted, 	the 	defendant 	must 	show 	that 	the 	error 	was
prejudicial.” State v. Peraza, 2018 UT App 68, ¶ 23, 427 P.3d 276,
cert. granted, 429 P.3d 460 (Utah 2018).1
1. Harvey also contends that his counsel was ineffective for
failing to move to arrest judgment. Because we reverse on
(continued…)

State v. Harvey
20170733-CA 	6 	2019 UT App 108
ANALYSIS
¶13 	The State makes no effort to defend the district court’s
ruling on the admissibility of Officer’s burn-off-rate testimony.
Rather, 	the 	State’s 	theory 	is 	that 	Officer’s 	burn-off-rate
testimony—even 	if 	erroneously 	admitted—was 	harmless
because there was overwhelming evidence to convict Harvey
under the alternative impairment theory of DUI, namely, that
Harvey was under the influence of alcohol to a degree to render
him incapable of safely operating a vehicle. See Utah Code Ann.
§ 41-6a-502(1)(b) (LexisNexis 2014). In other words, for the burn-
off-rate testimony to be harmless, we must conclude that the
other evidence presented at trial demonstrating that Harvey was
incapable of safely operating a vehicle was so strong that there is
no reasonable likelihood that the admission of the burn-off-rate
testimony affected the jury’s verdict. Thus, the State’s argument
is a delicate house of cards built on the foundation of showing
there was ample evidence of Harvey’s incapacity.
¶14 	We first consider the admissibility of Officer’s burn-off-
rate testimony. Then, having determined that his testimony was
improperly admitted, we consider whether its admission was
harmless based on the strength of the evidence showing that
Harvey was under the influence of alcohol to a degree rendering
him incapable of safely operating a vehicle.
I. Erroneous Admission of Officer’s Burn-Off-Rate Testimony
¶15 	We agree with Harvey that Officer was not a qualified
expert on the subject of alcohol burn-off rates and therefore
should not have been allowed to testify about this subject. The
Utah Rules of Evidence state that “a witness who is qualified as
(…continued)
Harvey’s first claim of error, it is unnecessary to address the
ineffective assistance of counsel claim.

State v. Harvey
20170733-CA 	7 	2019 UT App 108
an expert by knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). The district court reasoned that
Officer could testify as an expert about the burn-off rate of
alcohol because the metabolism of alcohol was “something he
learned in [the police academy], [so] he can testify to it. It goes to
the weight.” Thus, the district court determined that the alcohol
burn-off 	rate 	constituted 	special 	knowledge 	that 	must 	be
provided by an expert.
¶16 	Testifying 	about 	alcohol 	burn-off 	rates 	is 	generally
viewed by courts as the province of experts. But learning about
something in cursory fashion during training does not make a
person an expert. Indeed, in Negrini v. State, where an officer
attempted to testify about the alcohol burn-off rate based on
information 	he 	“heard 	during 	one 	lecture 	at 	the 	police
academy,” a Texas court held that the officer was not qualified
as an expert on the subject. 853 S.W.2d 128, 133 (Tex. Ct. App.
1993). And when burn-off-rate testimony has been admitted in
Utah, such testimony has been offered by an expert with a
scientific background. See State v. Folsom, 2019 UT App 17, ¶ 25,
438 P.3d 992 (noting the admission of burn-off-rate testimony
from a forensic toxicologist); State v. Bradley, 578 P.2d 1267, 1268–
69 	(Utah 	1978) 	(admitting 	burn-off-rate 	testimony 	from 	a
medical examiner).
¶17 	We acknowledge that law enforcement officers may offer
expert testimony on a range of subjects provided that sufficient
foundation is laid for the specific testimony. See United States v.
Figueroa-Lopez, 125 F.3d 1241, 1244–45 (9th Cir. 1997) (admitting
expert testimony of a special agent opining on the behavior of
drug traffickers); State v. Rothlisberger, 2006 UT 49, ¶ 31, 147 P.3d
1176 	(admitting 	expert 	testimony 	of 	a 	police 	officer 	on
determining whether a quantity of drugs is for distribution
purposes); Salt Lake City v. San Juan, 2015 UT App 157, ¶ 2, 353

State v. Harvey
20170733-CA 	8 	2019 UT App 108
P.3d 623 (admitting expert testimony of a police officer on
detecting 	signs 	of 	impairment). 	The 	question 	in 	this 	case,
however, is whether Officer was qualified to testify as an expert
on the topic of alcohol burn-off rates based on the foundation
provided at trial.
¶18 	Unlike 	signs of 	impairment 	or 	the 	behavior 	of 	drug
traffickers, the burn-off rate of alcohol from the human system is
not something that an officer can observe and form an expert
opinion about based on training and experience. See State v.
Ohotto, 323 P.3d 306, 310–11 (Or. Ct. App. 2014) (stating that
testimony regarding “alcohol absorption and elimination rates”
is 	not 	derived 	from 	an 	individual’s 	“training 	and 	prior
experience as a police officer”). Instead, it is necessarily scientific
testimony derived from lab testing, based on technical training,
and presented by an expert qualified in that area. Burn-off-rate
testimony 	requires 	“a 	formulaic 	calculation 	derived 	from
scientific understandings of physiological processes that cannot
be achieved through reading a training manual, conducting
routine [DUI] investigations in the course of law enforcement,
and attending [a training] course.” Id. at 311.
¶19 	The error in this case was admitting Officer’s burn-off-
rate testimony where the State failed to establish a sufficient
foundation that Officer had the necessary scientific expertise,
based on education, training, or otherwise, to offer burn-off-rate
testimony. It is not that officers, as a class, can never be qualified
to provide such testimony. See State v. Claybrook, 975 P.2d 1101,
1103 (Ariz. Ct. App. 1998) (“The expert witness who presents
BAC retroactive extrapolation evidence can be a police officer or
the operator of the machine if properly certified and in addition
possesses superior knowledge, experience and expertise on the
question.” (cleaned up)); Commonwealth v. Gonzales, 546 A.2d 26,
31–32 (Pa. 1988) (holding that a police officer was qualified as an
expert on the elimination of alcohol from the bloodstream where
he worked in the police laboratory and had specific education in
the 	pharmacology 	and 	toxicology 	of 	alcohol). 	But 	here, 	no

State v. Harvey
20170733-CA 	9 	2019 UT App 108
evidence was presented to show that Officer “understood the
process 	of 	alcohol 	elimination 	or 	relevant 	factors 	for
consideration.” See People v. Beck, 90 N.E.3d 1083, 1111 (Ill. App.
Ct. 2018). Nor was any testimony offered to explain the nature,
extent, or depth of his training and education on burn-off rates
of alcohol.
¶20 	Participating in a course at the police academy where
burn-off rates were generally mentioned shows merely that
Officer was exposed to information—not that he is an expert in
any of the subjects touched on in the course of study.2 Thus we
agree with Harvey that the testimony at trial failed to establish
that Officer had sufficient training to qualify as an expert on the
subject of alcohol burn-off rates. Therefore, Officer’s testimony
about the alcohol burn-off rate was improperly admitted.
II. The Harm From the Admission of Officer’s
Burn-Off-Rate Testimony
¶21 	We 	must 	next 	determine 	whether 	the 	erroneous
admission of Officer’s burn-off-rate testimony was harmless. See
State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (“Errors are often
harmless where there is overwhelming evidence in the record of
the defendant’s guilt.”); see also State v. Dunlap, 2010 UT App
122U, para. 3 (stating that improperly admitted evidence is
harmless if other evidence provides “overwhelming proof that [a
defendant is] guilty of DUI”). In DUI cases, this court has oft
stated that a jury may properly consider the entirety of the
2. We certainly acknowledge that sufficient education or training
can provide a foundational basis for expert testimony. See Utah
R. Evid. 702(a) (“[A] witness who is qualified as an expert by
. . . training . . . or education may testify in the form of an
opinion . . . .”). In the present case, however, Officer’s testimony
does not establish anything besides the fact that he “learned” of
burn-off rates at the police academy.

State v. Harvey
20170733-CA 	10 	2019 UT App 108
evidence in determining whether the level of impairment due to
consumption of alcohol makes it unsafe for an individual to
drive. 	For 	example, 	we 	have 	determined 	that 	even 	if 	a
defendant’s statements about the number of alcoholic beverages
he had consumed was improperly admitted, such error was
harmless beyond a reasonable doubt because the prosecution
produced 	other 	“strong 	evidence” 	of 	the 	defendant’s 	guilt,
including the odor of alcohol on the defendant, blood shot eyes,
failure of two out of three field sobriety tests, inability to count
to thirty, admission to drinking, slow and slurred speech, failure
to stop or slow down at a red light, inability to remember details
about the night, and refusal to submit to a breathalyzer test. Salt
Lake City v. Kane, 2007 UT App 44U, paras. 4–5; see also Dunlap,
2010 	UT 	App 	122U, 	paras. 	5–6 	(noting 	that 	even 	if 	the
defendant’s intoxilyzer results had been excluded, the jury could
have 	considered 	all 	the 	other 	evidence, 	including 	the
defendant’s driving in the wrong direction, urinating himself,
slurred speech, and lying on the ground next to his vehicle, to
determine whether defendant was incapable of safely operating
a vehicle).
¶22 	Here, the State argues that other evidence—apart from the
BAC 	evidence—conclusively 	establishes 	that 	Harvey 	was
incapable of safely operating a vehicle. The State makes three
specific points. First, the State argues that Harvey demonstrated
an unusual driving pattern. For example, Officer tried to stop
Harvey around one o’clock in the morning, but Harvey did
not immediately pull over, even though there was ample room
and 	the 	streets 	were 	empty 	at 	that 	hour. 	And 	instead 	he
continued for a block and a half and even stopped at a red light,
all while the patrol car’s overhead lights were flashing. Second,
when Officer approached Harvey’s truck, Harvey displayed
suspicious behavior. He rolled down his window only a few
inches. He maintained his gaze straight ahead and refused to
make eye contact with Officer. Officer noticed signs that Harvey
had likely been drinking an alcoholic beverage. Not only was the

State v. Harvey
20170733-CA 	11 	2019 UT App 108
odor of alcohol emanating from Harvey’s truck, but Harvey’s
passenger was trying to hide a half-consumed bottle of vodka as
Officer approached. Harvey’s left eye—the only one Officer
could 	see 	because 	Harvey 	declined 	to 	make 	eye 	contact—
appeared glassy and bloodshot. Third, even though Harvey
denied that he had been drinking alcohol, he refused to take a
breath test.3
¶23 	Unlike this case, all the cases we have identified where a
driver was convicted of DUI for being under the influence of
alcohol to a degree that rendered a person incapable of safely
operating 	a 	vehicle, 	see 	Utah 	Code 	Ann. 	§ 	41-6a-502(1)(b)
(LexisNexis 2014), as opposed to having a BAC over the legal
limit, have in common the presence of some evidence of the
driver’s incapacity to operate the vehicle safely, see State v.
Salgado, 2018 UT App 139, ¶¶ 33–35, 37, 427 P.3d 1228 (noting
that 	a 	defendant’s 	creating 	a 	“traffic 	hazard” 	by 	driving
considerably 	below 	the 	speed 	limit, 	non-responsiveness 	to
several 	attempts 	made 	by 	an 	officer 	to 	pull 	over, 	poor
performance on field sobriety tests, maintaining an “intent focus
straight ahead,” very droopy eyelids, and confusion about being
stopped were enough for the State to meet its “burden of
producing believable evidence on each element of DUI”); State v.
Van Dyke, 2009 UT App 369, ¶¶ 12–13, 15, 36–37, 223 P.3d 465
(holding “[e]ven in the absence of direct evidence that the
defendant drove recklessly or violated traffic rules, the jury was
free to consider all of the evidence presented,” including the
defendant’s slurred speech, glazed eyes, incoherence, staggering,
3. Our supreme court has held that the refusal to take an
intoxilyzer test is admissible as evidence of consciousness of
guilt. Sandy City v. Larson, 733 P.2d 137, 140–41 (Utah 1987); see
also South Dakota v. Neville, 459 U.S. 553, 565 (1983) (noting that it
is not fundamentally unfair for a state to use the refusal to take a
test to determine BAC as evidence of guilt).

State v. Harvey
20170733-CA 	12 	2019 UT App 108
unsteadiness, “slow and lethargic” movements, “lack of control
of his actions,” “impaired judgment,” and boisterous behavior
before driving “to determine whether his level of impairment
was such that it was unsafe for him to drive” and that “[u]nder
these circumstances, there was sufficient evidence from which
the 	jury 	could 	find, 	beyond 	a 	reasonable 	doubt 	that 	[the
defendant’s] level of intoxication made it unsafe for him to be
driving”); Rosengreen v. State, Dep’t of Public Safety, 2003 UT App
183U, para. 5 (concluding that even assuming an officer failed to
comply strictly with the standards for the administration of
FSTs, the officer’s testimony that the defendant was incapable
of safely operating a vehicle based on the odor of alcohol on
the defendant’s breath and the defendant’s performance on
three FSTs, admission that he had consumed two or three
beers, 	swaying 	during 	and 	between 	FSTs, 	difficulty 	in
maintaining his balance, and chattiness constituted sufficient
and reliable evidence of defendant’s incapacity to operate a
vehicle safely).
¶24 	Such evidence of incapacity is lacking in the testimony
offered by the State’s witnesses against Harvey. And this lack of
evidence of Harvey’s incapacity is the fundamental problem
with all the other non-BAC evidence offered by the State. None
of it shows that Harvey was impaired such that he could not
safely 	operate 	his 	truck.4 	Officer 	did 	not 	point 	to 	any
abnormalities 	in 	Harvey’s 	driving 	patterns. 	Now 	the 	State
argues 	that 	Harvey 	displayed 	an 	unusual 	driving 	pattern
because he did not immediately pull over after Officer activated
the lights on his patrol car. But taking a block and an half to pull
over hardly qualifies as an indication of impaired driving. Just as
4. We have scoured the transcript of Officer’s testimony and
confirmed that he testified that the FSTs established only the
presence of alcohol, not the blood alcohol level or any indication
of inability to operate a motor vehicle safely.

State v. Harvey
20170733-CA 	13 	2019 UT App 108
likely is that Harvey was thinking clearly enough to buy some
time for his passenger to try to hide the open bottle of vodka
before pulling over. And Officer did not note anything unusual
about the manner in which Harvey pulled over. Officer offered
no 	indication 	that 	Harvey 	slurred 	his 	speech 	during 	their
interaction; he did not mention the odor of alcohol on Harvey’s
breath. On the contrary, Officer stated that Harvey kept his
balance and did not lean on anything when he got out of his
truck in preparation to complete the FSTs. And no mention is
made of Harvey struggling to comply with Officer’s orders
during the FSTs.
¶25 	It is beyond question that Harvey had been drinking. In
fact, 	Harvey’s 	counsel 	admitted, 	“There 	was 	alcohol 	in
[Harvey’s] blood. We all acknowledge that. If that were the issue
here today[,] . . . I couldn’t ask you not to find him guilty.” Apart
from his counsel’s concession, there is abundant evidence that
Harvey was drinking on the night in question. There was an
open container of vodka, the truck reeked of alcohol, Harvey
avoided making eye contact, Harvey rolled down the window
only two inches, and Harvey’s eye appeared to be bloodshot. But
at 	most, 	these 	circumstances 	show 	that 	Harvey 	had 	been
drinking and that he was trying to hide that he had been
drinking. We note that Harvey has a rather lengthy criminal
history, including two recent DUIs. Thus, he had good reason—
at least from his perspective—to be circumspect as he tried to
avoid additional interaction with the legal system. But none of
these 	circumstances—even 	when 	considered 	in 	aggregate—
indicate that Harvey was impaired to such an extent that he
could not safely drive. And we do not regard Harvey’s refusal to
submit to a breath test as evidence of impaired driving. It
certainly indicates Harvey’s consciousness that he had been
drinking and driving, but there is no indication that his refusal
equates to the necessary level of impairment.
¶26 	Thus, 	the 	only 	indication 	that 	Harvey 	was 	impaired
necessarily comes by way of the two failed FSTs. But these two

State v. Harvey
20170733-CA 	14 	2019 UT App 108
failed tests, standing alone, are insufficient to support a finding
beyond a reasonable doubt that Harvey was so impaired that he
was incapable of safely operating his vehicle. Although Harvey
failed the HGN test, such failure did not show incapacity.
Rather, it merely indicated that Harvey had alcohol in his
system, a fact that Harvey readily concedes. But Harvey also
passed the VGN test. So although there was admittedly alcohol
in 	Harvey’s blood, the 	combination 	of 	the 	two 	tests could
potentially show—at the very most—that there was not a high
amount present.
¶27 	Harvey also failed the walk-and-turn test. But we deem
Harvey’s failure of this FST to be an unreliable indication of his
impairment because Harvey had suffered some serious previous
injuries (i.e., a shark bite and a bullet wound) to both legs—
injuries that likely compromised his ability to complete the walk-
and-turn test successfully. As Harvey points out, studies show
that fifty percent of completely sober drivers fail the walk-and-
turn test. Steven J. Rubenzer, The Standardized Field Sobriety Tests:
A Review of Scientific and Legal Issues, 32 Law & Human Behavior
293, 297 (2008). Thus, it is little surprise that Harvey, given his
previous injuries, also failed this test.
¶28 	Further, in our survey of cases, courts generally hold that
FSTs provide a means of estimating only BAC, not the degree of
incapacity. See Coffey v. Shiomoto, 345 P.3d 896, 905 (Cal. 2015)
(recognizing that the HGN test, the walk-and-turn test, and the
one-leg-stand 	test 	are 	“extremely 	accurate 	in 	discriminating
between BACs above and below 0.08 percent” (cleaned up));
State v. Ortez-Olivia, 2018 WL 5879517, at *3 (Del. Super. Ct. Nov.
8, 2018) (“The standardized field sobriety tests . . . are highly
accurate 	and 	reliable 	tests 	for 	detecting 	blood 	alcohol
concentrations at or above 0.10%, above the legal limit in this
State of 0.08%.”); State v. Lasworth, 42 P.3d 844, 845 (N.M. Ct.
App. 2001) (recognizing that standardized field sobriety tests
“enabled officers in the field to accurately estimate whether a

State v. Harvey
20170733-CA 	15 	2019 UT App 108
motorist’s BAC was at or above 0.08 percent ninety-one percent
of the time”).5
¶29 	Thus, in light of the weak evidence of impairment, there is
a reasonable likelihood that the jury would have reached a
different verdict if Officer’s burn-off-rate testimony had been
excluded.
CONCLUSION
¶30 	Because the evidence of Harvey’s incapacity to operate a
vehicle 	safely 	was 	not 	so 	overwhelming 	as 	to 	render 	the
erroneous 	admission 	of 	Officer’s 	burn-off-rate 	testimony
harmless, we determine that Harvey was prejudiced by the
admission of the testimony in question. Therefore, we must
vacate his DUI conviction and remand for a new trial.
5. We note that had the State presented testimony to this point
(i.e., that the failure of FSTs is an accurate indicator of BAC in
excess 	of 	.08), 	the 	jury 	could 	have 	convicted 	Harvey 	for
operating a vehicle while having a BAC of .08 or greater. See
Utah Code Ann. § 41-6a-502(1)(c) (LexisNexis 2014). But neither
Officer, nor any other witness, so testified.