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10th Circuit upholds opening DUI prosecutions before tests ready

The Tenth Circuit Court of Appeals has upheld a Utah county's policy of initiating DUI prosecutions before the defendants' blood alcohol tests have returned from the lab. Although this decision doesn't directly affect Tennessee, our courts could easily rule the same way.

The case involved a Utah woman who was pulled over for an expired license plate. Although her speech was clear, her balance was normal and her eyes weren't bloodshot, two officers claimed she smelled of alcohol and suspected she was drunk. She admitted having a single beer with lunch. One of the officers required her to undergo field sobriety tests and claims that she failed. She contends that the officer's instructions were unclear and that the tests were performed improperly. She was not given the opportunity to take a portable breath test.

She was handcuffed and brought to the county jail for a blood test. Even though the test results wouldn't be available for months, she was charged with DUI.

She was forced to spend two and a half months with DUI charges hanging over her head. When the test results were finally returned, they showed she had a blood alcohol content of only 0.01. Her DUI case was ultimately dismissed.

The woman sued for false arrest and malicious prosecution. First, she claims that the officers lacked probable cause to arrest her for DUI absent a positive result from a portable breath test. Second, she argues that the county had no right to prosecute her without the blood alcohol test results.

There were procedural issues that barred some of her claims, but the Tenth Circuit ruled against her. The officers and prosecutor had acted properly, and they were immune from the lawsuit anyway.

In most jurisdictions including Tennessee, DUI prosecutions can go forward without blood alcohol tests. In such cases, the court considers the observations of the arresting officers and any other facts when determining whether the prosecution has proven DUI beyond a reasonable doubt.

Here, the woman admitted to having a beer, and Utah's DUI standard is a low 0.05 percent. The officers' claim that they smelled alcohol was sufficient for them to investigate the woman for DUI. The allegedly failed field sobriety tests provided sufficient evidence to support a DUI arrest and might have been enough for a conviction, if the county hadn't dismissed the case.

As the woman points out in her suit, the county's policy of prosecuting without waiting for the test results puts innocent people in the position of hiring defense attorneys even when they know their test results will be below the limit. That expense and trouble, however, was not enough to make the county's actions unlawful.

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