The Appellate Group

State v. Higley

State v. Higley, 2020 UT App 45 (Appleby, J.)


The police found the defendant slumped over in his car while his car was in neutral and stopped in a left-turn lane. After awaking him, the defendant admitted to taking alprazolam (Xanax) and failed the two balance-based field sobriety tests. The police arrested him and only found Xanax in his system. At trial, a toxicologist testified that the amount of Xanax in the defendant’s system was within the clinical range. The jury convicted the defendant of DUI and of possessing heroin the police found in a subsequent search of the car. The Court of Appeals affirmed the convictions, holding:

  • Trial counsel was not ineffective for not seeking to arrest judgment on the DUI conviction. There was sufficient evidence that the defendant was incapable of safely operating a vehicle because he failed two field sobriety tests, had a hard time keeping his balance, was asleep at the wheel, and had difficulty complying with the officers’ orders.
  • The district court did not erroneously deny the defendant’s request to instruct the jury on reckless driving as a lesser-included offense to DUI. The elements of the two crimes do not sufficiently overlap: DUI does not require a mens rea, and reckless driving does. DUI requires the defendant be under the influence and incapable of safely operating a vehicle, and reckless driving does not. Both offenses have an element of operating a vehicle, but that is not sufficient overlap to constitute a lesser included offense.
  • The defendant has not established nonspeculative facts that show his trial counsel was ineffective for failing to question him more thoroughly about the facts of the case or calling his mother to testify.

Read the full court opinion