Under Utah Code Ann. § 41-6-44(8), (9) and § 41-6-44.6, the crime of Driving with any Measurable Controlled Substance in the Body occurs when any person operates or is in physical control of a motor vehicle while having any measurable, illegally consumed controlled substance in the person's body.
The crime of Driving with Measurable Controlled Substance in the Body (Metabolite) under Section 41-6a-517(2) is a class B misdemeanor for a first offense. In many of these cases, the prosecutor and the criminal defense attorney will negotiate a plea deal in which the defendant agrees to plead guilty to this crime in satisfaction of, or as a substitute for, a DUI charge.
A conviction for Driving with any Measurable Controlled Substance in the Body is considered a prior conviction for purposes of enhancing a third or subsequent driving under the influence (DUI)charge to a felony. The provisions in the DUI law regarding screening, assessment, education, and treatment apply to this offense.
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Utah Code section 41-6a-517 provides that "[i]n cases not amounting to a violation of Section 41-6a-502 [the DUI statute], a person may not operate or be in actual physical control of a motor vehicle within this state if the person has any measurable controlled substance or metabolite of a controlled substance in the person's body."
The statute unambiguously criminalizes operating or being in actual physical control of a motor vehicle with "any measurable controlled substance or metabolite of a controlled substance in the person's body," regardless of the metabolite's potential, or not, to cause impairment."
The phrase “in cases not amounting to” distinguishes section 41-6a-517 from section 41-6a-502, the DUI statute, by “negat[ing] any requirement to show actual or potential impairment.”
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Under the Measurable Amount Statute, a person who, “in an offense not amounting to a violation of [the Automobile Homicide Statute],” “knowingly and intentionally [has] in the person's body any measurable amount” of a Schedule I or II controlled substance (such as methamphetamine) without a valid prescription, “operates a motor vehicle ... in a negligent manner,” and causes either death or serious bodily injury to another commits a second-degree felony. Id. § 58–37–8(2)(a)(i), (g), (h)(i) (Supp. 2015).
The Measurable Amount Statute makes a distinction between those who use controlled substances without a prescription and those who use them with a prescription. Those who have a prescription for a controlled substance may be charged only under the Automobile Homicide Statute or the DUI With Serious Injury Statute, not the Measurable Amount Statute. See Utah Code Ann. § 58–37–8(2)(a)(i), (g)(i) (exempting from the Measurable Amount Statute those who have a valid prescription).
Therefore, unlike nonprescription users, prescription users can be charged with no more than a third-degree felony and can be convicted only if the State demonstrates that they were intoxicated to a degree that rendered them incapable of safely operating a motor vehicle. See id. § 41–6a–503(2)(a); id. § 76–5–207(2)(a) (2012).
The court recently found that the second-degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution but found that the offense should instead be classified as a third-degree felony. See State v. Ainsworth, 365 P.3d 1227, 1230-31 (Utah Ct. App. 2016).
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If you were charged with DUI with a measurable amount under Utah Code Ann. § 41-6-44(8), (9) and § 41-6-44.6, then contact an experienced criminal defense attorney to discuss the case.
If the arresting officer alleged that you operated a motor vehicle while having any measurable, illegally consumed controlled substance your body, then contact us to discuss defenses that might apply to this class B misdemeanor.
Let our Salt Lake City DUI Lawyers put their experience to work for you. Call (801) 532-5297 today.
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