Petition for Writ of Certiorari — Dean Spencer, Petitioner v. Utah

Supreme Court briefNov 25, 2025

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No. _______

In The

Supreme Court of the United States

DEAN SPENCER,

Petitioner,

STATE OF UTAH,

Respondent.

On Petition for Writ of Certiorari to the

Utah Court of Appeals

PETITION FOR WRIT OF CERTIORARI

DALLAS B. YOUNG

Counsel of Record

*Court-Appointed

Utah County Public

Defender Ass’n

5152 N. Edgewood Dr.,

Suite 300

Provo, UT 84604

dallasy@utcpd.com

QUESTION PRESENTED

1. In an alcohol DUI prosecution where the

only question was if Mr. Spencer’s BAC

was above Utah’s then-applicable per se

threshold of 0.08, two toxicologists testified

to Mr. Spencer’s BAC according to their

respective toxicological analysis. One

testified that his BAC was 0.79, and the

other testified that it was 0.08. Both

testified that both results were within

known measurement errors and were

correct measurements.

The question is whether this evidence was

sufficient to find beyond a reasonable

doubt that Mr. Spencer’s BAC was 0.80 or

above.

Parties to the Proceeding

The case caption contains the names of all

parties to this petition: petitioner Dean Spencer and

respondent State of Utah.

RELATED PROCEEDINGS

Utah Supreme Court, State v. Spencer, 20250779-SC

(Petition for Writ of Certiorari denied) (August 27,

2025).

Utah Court of Appeals: State v. Spencer, 2025 UT App

66 (May 8, 2025).

Utah Fourth District Court, State v. Spencer,

191101244 (August 24, 2023).

iii

TABLE OF CONTENTS

Question Presented...................................................... i

Parties to the Proceeding .......................................... ii

Related Proceedings................................................... iii

Table of Authorities ................................................... v

Opinions Below ........................................................... 1

Jurisdiction ................................................................ 1

Statutory Provisions Involved ................................... 1

Statement of the Case ............................................... 2

Procedural history ..................................... 5

a. The Information ........................................... 5

b. The trial ........................................................ 6

c. The verdict .................................................... 6

II.

Disposition in the court below .................. 7

Reasons for Granting the Petition ............................ 7

Conclusion ................................................................ 10

Appendix

TABLE OF AUTHORITIES

CASES

Addington v. Texas,

441 U.S. 418, 423 (1979) ................................. 8, 9

E.g,. Kansas v. Marsh,

548 U.S. 163 (2006) ............................................. 9

In re Winship,

397 U.S. 358, 364 (1970) ................................. 7, 8

State v. Spencer,

2025 UT App 66 ................................................... 7

CONSTITUTIONAL PROVISIONS &

STATUTES

28 U.S.C. § 1257(a) ..................................................... 1

Utah Code § 41-6a-502 (2018) .................................... 2

OPINIONS BELOW

The issues before the Utah Court of Appeals

was whether the evidence was sufficient to uphold

Mr. Spencer’s conviction, where both toxicologists

acknowledged that both the 0.79 and 0.80 BAC result

were within known measurement error rates and

therefore correct measurements. The court treated

the trial as though it was a battle of the experts, and

because a fact finder can reasonably believe one

expert over another, the evidence was sufficient to

sustain the verdict. See Appendix B.

Mr. Spencer sought a writ of certiorari from the

Utah Supreme Court, but was denied in an order

dated August 27, 2025. See Appendix C.

JURISDICTION

The Utah Supreme Court issued its order

denying the petition for writ of certiorari on August

27, 2025. This Court has jurisdiction under 28 U.S.C.

§1257(a).

STATUTORY PROVISIONS INVOLVED

Utah’s DUI statute in effect at the time of

arrest provided, pertinent part:

A person may not operate or be in actual

physical control of a vehicle within this

state 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 greater1 at the time of the test.

Utah Code §41-6a-502 (2018).

Statement of the Case

Mr. Spencer was driving his car southbound

in Vineyard, Utah when Officer observed him make

a right-hand turn on a red light at an intersection

that was posted as no turn on red. Appendix A at

R.760:14-20. Officer initiated a traffic stop. Id. at

R.760:20-22. There was no other concerning driving

pattern. Id. at R.771:11-14. Mr. Spencer was the

only occupant of the vehicle and the officer smelled

the odor of alcohol coming from the vehicle. Id. at

R.761:15-20.

Officer suspected that there was freshly

spilled alcohol in the vehicle, and noticed that Mr.

Spencer’s speech was “a bit slurred and he did have

droopy eyelids.” Id. at R.762:5-6. Based on those

observations Officer asked Mr. Spencer to exit the

vehicle and informed him that he had probable cause

to search the vehicle. Id. at R.762:10-12. Mr. Spencer

responded that “you’ll have to search.” Id. at

R.762:12.

1 Utah’s DUI statute was amended, effective

December 30, 2018. Among the changes was to lower

the per se threshold from .08 to .05. But because the

date of offense predated the effective date of the

amendment, the question at trial was if Mr.

Spencer’s BAC was .08 or higher.

Officer found open alcohol containers in the

vehicle and decided to ask Mr. Spencer to submit to

field sobriety tests. Id. at R.763:18-22. Mr. Spencer

did not respond. Id. at R.763:23-764:1.

Officer arrested Mr. Spencer for DUI and

transported him to the Utah County Jail, where he

requested that Mr. Spencer submit to a blood draw.

Id. at R.766:13-15. The officer read the admonition

for requesting a blood draw for chemical testing

purposes, but Mr. Spencer did not respond and did

not consent. Id. at R.766:20-22. The officer then

requested a warrant, which was signed. Id. at

R.767:14-23. With the warrant, the blood sample

was taken. Id. at R.768:11-18.

The State’s forensic toxicologist analyzed Mr.

Spencer’s blood sample and reported an official

measurement of .08 BAC. Id. at R.797:16-19. The

State’s toxicologist also testified that the batch data

yielded two results, 0.08479 and 0.08437, and that at

the time Utah used the lower of the two values,

truncated to the hundredths. Id. at R.800. Thus, the

State’s toxicologist’s report showed a 0.08 BAC. Id.

at R.797:16-19. But the State’s toxicologist also

acknowledged that this type of testing has a plus or

minus 5% margin of measurement uncertainty. Id.

at R.800:7-15. That is, under the State’s toxicological

analysis, the actual BAC of Mr. Spencer’s blood

sample falls somewhere between 0.0796 and 0.084.

See id. at R.800:7-15.

The State’s toxicologist also testified at length

regarding elimination rates, all in support of an

attempt at retrograde extrapolation to opine on Mr.

Spencer’s BAC at the time he was driving. The

defense objected both before and during trial but was

overruled both times. Id. at R.743:19-24 | 751:13753:4 | 790:20-791:22 | 792:25-793:22. But

ultimately the trial court ruled that the attempt at

retrograde extrapolation to calculate Mr. Spencer’s

BAC while he was driving was founded on too many

unwarranted assumptions and bad data to be

helpful. Id. at R.824:22-825:7.

The defense called the director of a private

forensic lab, who conducted an independent analysis

of Mr. Spencer’s blood sample. Id. at R.815:6-18. The

State stipulated to the receipt of his lab’s report on

its analysis of Mr. Spencer’s blood sample. Id. at

R.815:19-25. His lab’s testing returned a result of

0.079 BAC. Id. at R.817:2-4. On cross examination,

he testified that the difference between 0.079 and

0.08 is not statistically significant. Id. at R.818:1114. On re-direct, the defense expert testified that he

believed the 0.79 result to be correct, within his lab’s

degree of measurement uncertainty, which in this

case would be plus or minus 0.004. Id. at R.819:1215.

During argument, the State conceded that it

could not prove that Mr. Spencer violated other

prongs of the DUI statute. Id. at R.822:10-12.

Instead, it relied exclusively on its contention that

Mr. Spencer’s BAC was .08 at the time of the test.

Id. at R.822:20-25.

The defense preserved the issue for review

during closing argument, arguing that, given the

rate of measurement error –which was not in

dispute—the State had not carried its burden of

proof. Id. at R.825:8-11.

The trial court acknowledged that the State’s

toxicologist’s testimony concerning retrograde

extrapolation carried little weight, if any at all. Id. at

R.824:23-825:5. Thus, the only element of DUI that

was contested was whether the State carried its

burden to prove that Mr. Spencer’s BAC was .08 or

higher at the time of the test. Id. at R.825:8-15 |

829:19-25.

Procedural history

a. The Information

Mr. Spencer was charged with DUI as a thirddegree felony by priors, as well as Open Container in

a Vehicle. The Information alleged a DUI violation

in one of three ways: by operating or being in actual

physical control of a motor vehicle and: 1) having

sufficient alcohol in his body that a subsequent test

showed a BAC of 0.082 or greater; 2) being under the

2 The State incorrectly charged Mr. Spencer under

the 0.05 per se threshold in effect at the time of the

filing of the Information. However, because Mr.

Spencer’s date of offense predated the amendment

influence to the point that he was incapable of safely

operating a motor vehicle safely; or 3) having a BAC

of 0.08 or greater at the time of operation or actual

physical control of the vehicle.

b. The trial

Mr. Spencer waived his right to jury trial and

the matter was tried to the bench. The State called

only the case officer (Id. at R.755-775) and the

toxicologist (Id. at R.776-810). The defense called one

witness, also a toxicologist. Id. at R.814-820.

Evidence was presented as outlined above.

During closing arguments, the State relied

only on its first theory of guilt: that a subsequent

chemical test revealed a BAC of 0.08, the per se

threshold in effect on the date of offense. Id. at

R.822:10-23.

The defense argued that with two BAC results

from the same blood sample, one at 0.08 and one at

0.079, reasonable doubt remained. Id. at R.825:8-21.

c. The verdict

The trial court saw it differently, noting the

consensus between the experts that the difference

that dropped the per se threshold from 0.08 to its

current 0.05, he was tried according to the 0.08

threshold in effect on the date of offense.

between the 0.08 and 0.79 results was not

statistically significant. Id. at R.830:7-11. Based on

the lack of statistical significance between the two,

the trial court ruled that both tests suggested a BAC

of 0.08 and found Mr. Spencer guilty of DUI. Id. at

R.830:23-831:2.

II.

Disposition in the court below

Mr. Spencer appealed, challenging the

sufficiency of the evidence supporting his per se DUI

conviction. Appendix B, State v. Spencer, 2025 UT

App 66, ¶3. The court of appeals rejected that

challenge, reasoning that the trial involved the trial

court deciding which conflicting evidence it found

credible. Id. at ¶¶ 17-18. And because appellate

courts are ordinarily not in the business of second

guessing how fact finders weigh conflicting evidence,

the court of appeals affirmed. Id. at ¶¶18-20.

Mr. Spencer sought a Writ of Certiorari from

the Utah Supreme Court. That petition was denied

in an order dated August 27, 2025. Appendix C.

REASONS FOR GRANTING THE PETITION

Despite its importance to the criminal justice

system,3 the beyond a reasonable doubt standard

doesn’t get defined explicitly often. Instead, trial

courts and practitioners are left to intuit where on

the spectrum of proof it lies.

3 See, e.g., In re Winship, 397 U.S. 358, 364 (1970).

This case involves the interplay between the

beyond a reasonable doubt standard and the concept

of equipoise.

At trial, both toxicologists testified that there

was a 5% known range of measurement error,

meaning that any result between .0796 and .084 was

equally correct. That is, it was just as likely that Mr.

Spencer’s BAC was below the per se threshold of .08

as it was that his BAC was .08 or higher. In that

sense, the evidence on the only question that

mattered at trial was in equipoise.

So this case would require the Court to

answer if that evidence is sufficient to support a

finding beyond a reasonable doubt.

Concepts such as where on the spectrum of

proof the beyond a reasonable doubt standard falls

are difficult to define. This is why examples are

usually better than abstractions. And this case

affords the Court the opportunity to provide a

concrete example of where on the spectrum of proof

the beyond a reasonable doubt standard falls, or if

Mr. Spencer prevails, where it does not.

This is not an insignificant issue. The burden

of proof is where the rubber of the Due Process

Clause hits the road. See Addington v. Texas, 441

U.S. 418, 423 (1979). It is constitutionally required.

Winship, 397 U.S. at 364. It is designed to instruct

fact finders on the acceptable degree of risk of error

when life and liberty interests are at stake. Id. at

369-70 (Harlan, J., concurring), Addington, 441 U.S.

at 423. And it is not an overstatement to say that

what is and what is not proof beyond a reasonable

doubt can be a matter of life and death. E.g,. Kansas

v. Marsh, 548 U.S. 163 (2006).

But despite its importance, there are few

cases that articulate where on the spectrum of proof

the line between the various burdens of proof lies. To

be fair, this is because identifying lines of

demarcation in this context is difficult, if not

impossible. See Addington, 441 U.S. at 424-25

(“Candor suggests that, to a degree, efforts to

analyze what lay jurors understand concerning the

differences among these three tests or the nuances of

a judge’s instructions on the law may well be largely

an academic exercise; there are no directly relevant

empirical studies. Indeed, the ultimate truth as to

how the standards of proof affect decisionmaking

may well be unknowable, given that factfinding is a

process shared by countless thousands of individuals

throughout the country. We probably can assume no

more than that the difference between a

preponderance of the evidence and proof beyond a

reasonable doubt probably is better understood than

either of them in relation to the intermediate

standard of clear and convincing evidence.”).

Hence the importance of concrete examples of

where the line does and does not lie. This case

provides the Court an opportunity to do exactly that.

And it does so in a context where there is only

one question: whether Mr. Spencer’s BAC was .08 or

higher. The State conceded at trial that it had no

basis to suggest that Mr. Spencer was incapable of

operating a vehicle safely; it put all its chips on his

BAC being .08 or higher. Thus, the sole question

concerns the sufficiency of evidence supporting a

finding that Mr. Spencer’s BAC was .08 or greater.

That makes for a clean record where there are no

additional variables to cloud the Court’s analysis.

Practitioners and trial courts alike would

benefit greatly from concrete examples of what does

not constitute proof beyond a reasonable doubt. This

case affords the Court an opportunity to provide a

clean, easily understood example. It should take the

opportunity and grant this petition.

CONCLUSION

For the foregoing reasons, petitioner Dean

Spencer asks that this Court to grant his petition for

writ of certiorari, and reverse the judgment of the

Utah Court of Appeals affirming his conviction.

Respectfully submitted,

/s/ Dallas B. Young

Counsel of Record

5152 N. Edgewood Dr., Suite 300

Provo, UT 84604

dallasy@utcpd.com

Filed: September 25, 2025

APPENDIX

Appendix A: Transcript of Bench Trial.

Appendix B: Utah Court of Appeals opinion in State

v. Spencer, 2025 UT App 66.

Appendix C: Order of the Utah Supreme Court

denying Petition for Writ of Certiorari.

APPENDIX A

Transcript of Bench Trial

IN THE FOURTH JUDICIAL DISTRICT COURT-AMERICAN FORK

OF UTAH COUNTY, STATE OF UTAH

)

) Case No. 191101244 FS

)

STATE OF UTAH,

Plaintiff,

vs.

DEAN MARSHALL SPENCER,

Defendant.

Bench Trial (Via Webex)

Electronically Recorded on

August 23, 2023

BEFORE: THE HONORABLE DENISE M. PORTER

Fourth District Court Judge

APPEARANCES

For the State:

Peter Reichman

UTAH COUNTY ATTORNEY’S OFFICE

100 East Center Street

Suite 2100

Provo, Utah 84606

Telephone: (801)851-8026

For the Defendant:

Ryan Taylor

UTAH COUNTY PUBLIC DEFENDERS

140 North University Avenue

Suite 140

Provo, Utah 84601

Telephone: (801)852-1070

Transcribed by: Wendy Haws, CCT

1142 West 1810 South

Orem, Utah 84058

Telephone: (385)384-4947

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Bates #000741

INDEX

WITNESS: CHAD STILSON

DIRECT EXAMINATION BY: MR. REICHMAN

CROSS EXAMINATION BY: MR. TAYLOR

REDIRECT EXAMINATION BY: MR. REICHMAN

PAGE

WITNESS: LORI ABBOTT

DIRECT EXAMINATION BY: MR. REICHMAN

CROSS EXAMINATION BY: MR. TAYLOR

REDIRECT EXAMINATION BY: MR. REICHMAN

RECROSS EXAMINATION BY: MR. TAYLOR

WITNESS: TIMOTHY DJACKUS

DIRECT EXAMINATION BY: MR. TAYLOR

CROSS EXAMINATION BY: MR. REICHMAN

REDIRECT EXAMINATION BY: MR. TAYLOR

-o0oEXHIBITS

NUMBER

No. P-1

No. P-2

No. D-1

No. P-3

No. D-3

DESCRIPTION

Photo of Open Container

Search Warrant

Driver’s License Record

Toxicology Report

PAGE

-o0o-

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Bates #000742

P R O C E E D I N G S

(Electronically recorded on August 23, 2023)

(Please note any inaudible words or portions in this

transcript are due to the inferior quality of the

Webex recording system in place since Covid.)

THE COURT: Let’s go on the record in the matter of

State of Utah vs. Dean Spencer.

sir.

Mr. Spencer, good morning,

MR. SPENCER: Good morning.

THE COURT: Mr. Taylor, are we ready to go to trial

this morning?

MR. TAYLOR: We are.

make.

THE COURT: Okay.

I do have some oral motions to

Mr. Reichman, is the State prepared

to proceed?

MR. REICHMAN: Yes, Judge.

THE COURT: Mr. Taylor, I’ll turn the time over to

you, then.

MR. TAYLOR: The oral motion is to a motion in limine

to exclude testimony by the State’s proposed expert Lori Abbott

who –- well, in part, in that she –- the proposed testimony on

the –- on the issue of elimination and the conjecture of what

the blood/alcohol level would have been after a period of time

by elimination.

The reason for that is threefold.

First of all, it’s

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Bates #000743

a notice issue.

Lori Abbott that she would be testifying regarding her training

and experience as a forensic scientist, the procedures used in

the applicable community in identifying and measuring methanol

in blood, and her expert opinion as to the meaning of those

observations and findings in testing the material submitted in

this matter.

The State filed a witness expert notice about

Now, that is –- the material submitted in this matter

is a blood test that was –- that was given to her.

evidence will likely show Mr. Spencer’s blood was tested at

that point.

been proposed now are not included in that –- in that notice.

So I wasn’t noticed.

continuance, and we’re not asking for that.

State’s

The theories and calculations that have also

I know that the remedy for that is a

The second reasoning for the exclusion is 702.

If I

just may sit so I can read this.

THE COURT: That’s fine.

As we move forward with

trial, gentlemen, you’re welcome to use the lectern, you’re

welcome to remain seated.

Whatever is most preferred.

MR. REICHMAN: Thank you.

MR. TAYLOR: So as far as the timing goes, I just –-

on the notice, I want to just make a few things clear.

I had

received an original discovery, the notice of –- or the blood

testing, with Lori Abbott as the person who tested the blood

from the Utah State Lab.

That report, and then I further

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Bates #000744

received in preparation for trial that she would testify on

that.

I’m not arguing that she has expertise to test blood

and tell what those results are and what they mean.

in coming closer to trial I had an expert as well who tested

the blood as well with a different result.

contacted by the State, and in talking to him I learned that

they were talking about this absorption and elimination issue.

THE COURT: Now, when you say elimination –-

MR. TAYLOR: That was –-

THE COURT: –- it is whether or not someone has –- has

However,

He was subsequently

used the restroom; is that correct?

MR. TAYLOR: No, it’s when –- it’s how the alcohol –-

THE COURT: Or are you talking about regression rates?

MR. TAYLOR: Yes.

THE COURT: Okay.

MR. TAYLOR: They have called it elimination rates, so

–- in the –- in the reports I’ve had.

THE COURT: Okay.

MR. TAYLOR: My expert informed me that the State had

brought up this issue.

of last week.

realizing that there’s more to her testimony than what was

noticed to me originally.

At that point –- that was on Wednesday

At that point I contacted the State’s witness,

In talking to her she informed me that she had written

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Bates #000745

up a calculation, it’s a little sheet entitled “Calculations,”

that I’d find very problematic.

became aware of this new sheet that had been provided to the

State by their expert.

This was on Friday that I

That calculation is I don’t believe admissible as

expert testimony under Rule 702.

is the notice.

just going to refer to 702. So the expert opinion is “technical

or other specialized knowledge that will help the trier of fact

to understand the evidence or to determine a fact at issue.”

That’s in (a), subsection (a).

So the motion in limine first

Second, 702, in that the scientific –- now I’m

The issue with this new report that I received is

that I don’t think that it can help the trier of fact.

In the

report she states several things that she has to assume that –-

to make these calculations.

and because it’s just assuming these things, that it can’t

actually help.

These assumptions can’t be proven,

THE COURT: What are the assumptions?

MR. TAYLOR: Just reading from this report –- well,

there’s a few things.

an average BAC for a person, and that’s an assumption that he

–- that that applies to this case, and that’s an issue; but

there’s more serious assumptions.

First of all, the assumptions include

“Further, I will assume that all alcohol has been

fully absorbed,” which is a very large assumption and very

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Bates #000746

problematic.

subject has no major medical conditions that affect metabolism

of alcohol, and there was no alcohol consumed between the time

of the stop and the blood draw.”

that she’s recognizing at the outset that she’s assuming.

So that’s the list of things

THE COURT: And so how do those assumptions go to

Then “the subject had a full stomach,” and “The

admissibility versus weight?

MR. TAYLOR: Well, like I said, it doesn’t help the

trier of fact to determine an issue in the case, because

they’re just assumptions.

second –- or the third basis, which is 403, that the –- the

calculations are much more prejudicial than they are probative

in value.

I think that that leads to the

Substantially outweighed, because these calculations

make these initial assumptions that we don’t know anything

about, and that they lead to conclusions that are not based

in any facts that will be presented at the trial, but that

would be very prejudicial for –- for Mr. Spencer here.

those are the three bases for that motion to exclude testimony

on elimination.

THE COURT: Okay, thank you, Mr. Taylor.

State’s

response?

MR. REICHMAN: Yes, so just briefly.

So as to the

notice issue, I will concede our original witness list did say

that Ms. Abbott would be testifying as our expert.

At the time

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Bates #000747

we did indicate that she would be testifying about, you know,

the blood draw and what she did with the blood.

The retrograde analysis or remission –- what –-

THE COURT: Regression analysis.

MR. REICHMAN: –- regression analysis, that didn’t

come up until Mr. Taylor filed his expert notice roughly 30

days ago and gave me the report from his expert that indicated

that the blood came back at .079.

It took me a bit, but I was able to –- I talked first

with his expert, and in talking with his expert and learning

about the .079 versus the .08, you know, one of the things he

indicated to me was –- well, statistically speaking, the .079

and the .08 are the same result.

the State’s –- the Utah State Crime Lab results.

His results just confirmed

I asked him about the regression analysis –- did I

just say that right again?

THE COURT: Uh-huh.

MR. REICHMAN: Regression analysis.

three different ways so far in my –- my studying of it.

I’ve heard it

THE COURT: I think it depends on which expert you’re

talking to.

MR. REICHMAN: Okay, so I’m all sorts of confused; but

I talked to him about that, and he essentially told me the same

thing that what Mr. Taylor has just said.

things that I then went and confirmed with the State’s expert.

He told me the same

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Bates #000748

The report that I then, after talking with the State’s

expert about that issue, I mean, report, yes, but really it was

just an informal email to me saying, you know, in a hypothet-

ical situation, if we took somebody with Mr. Spencer’s age,

weight and stuff and then we applied the calculations in a

fast absorption rate, a medium absorption rate, and a slow

absorption rate, we would get this range, right?

So, yes, we do have to assume certain things, but

all of those things would affect –- you know, would affect

the fast, the slow or the medium, the average absorption –-

absorption rate of the alcohol.

issue, sorry.

So I think that’s the notice

I’m getting ahead of myself.

So as soon as I became aware that there was a second

blood test, and then needed an expert to then potentially talk

about –- or to rebut what that expert would be saying, I spoke

with his expert and I spoke with our expert, and then our

expert sent me that informal email saying in a hypothetical

world this is what we would do, and then I provided that to

Mr. Taylor.

So I provided that as soon as I had it.

As to the 702 I think that this does go to weight of

the evidence.

I mean, obviously we don’t know.

Mr. –- and

I’ll be the first to concede that Mr. Spencer did not make any

admissions to Deputy Stilson regarding time of last drink, how

much, you know, things that would affect that absorption rate,

or whether he’s going up or down.

That’s just not something we

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Bates #000749

can scientifically calculate to an exact number without knowing

those facts; but that’s why there’s the range of numbers in

that analysis.

So it does go to weight.

Again, going to that weight, that’s what the –- the

range of numbers is to Mr. Spencer’s –- it’s in Mr. Spencer’s

favor, right?

if he had recent –- you know, recently consumed any alcohol,

then we’re looking at a much faster absorption rate, which is

why we go to the lower projected blood/alcohol rate between

from the time of the stop –- and we do know the time of stop.

Because we’re –- if it was on an empty stomach,

We do know the time of blood draw.

We also know

Mr. Spencer’s weight and height at the time, and age from the

booking information.

the evidence, and I think Ms. Abbott, and in turn Mr. –- sorry,

I forgot your expert –-

So, again, I think that goes to weight of

MR. TAYLOR: I think it’s Djackus.

MR. REICHMAN: Djackus, sorry.

Mr. Djackus can both

testify as to their –- in their training and experience as to

the –- that –- that analysis.

that’s all I have.

Did I miss anything?

I think

THE COURT: Final comments on this issue, Mr. Taylor?

MR. TAYLOR: Yes, just on the notice issue.

Well, I

guess on everything.

I filed my notice, my expert notice 40

days prior to trial on July 13th.

report on Friday after I had talked to his expert, and she told

I received this calculations

-10-

Bates #000750

me that it was created, and then I emailed Mr. Reichman at

that point.

testify on that, I have had Friday afternoon, Monday, Tuesday

to prepare for that, which I –-

Then he sent it to me.

So while my expert could

THE COURT: But Mr. Taylor, you’re not asking for a

continuance, and the rule doesn’t provide for exclusion of the

evidence based on lack of notice.

MR. TAYLOR: Right, I think I’m addressing that under

702 and 403.

The notice issue is just that it goes into the

whole circumstances.

THE COURT: Anything further?

MR. TAYLOR: No.

THE COURT: All right, defense has requested that I

exclude a portion of the State’s expert testimony essentially

talking about regression analysis that is –- that is a specu-

lation about where BAC would be over a period of time under

certain circumstances.

Let’s address those things in turn.

Initially Mr. Taylor indicated for the record, he

actually did it twice, that he is not requesting a continuance

of this matter. 77-17-13 gives expert testimony notice require-

ments.

clear, I do in fact find it was faulty, I find that it was

untimely, the remedy is continuance, because the statute

specifically addresses this.

Even if the notice here was faulty, and just so we’re

Let me get –- let me get right to it.

“The remedy of

-11-

Bates #000751

exclusion of the expert’s testimony will only apply if the

Court finds that a party deliberately violated the provisions

of the section.”

to be credible, is that this was not an issue until such time

that Mr. Taylor and Mr. Reichman had consulted their experts.

So I do not find that it’s in bad faith.

What Mr. Reichman has proffered, what I find

I do not

find that it was deliberate.

remedy is continuance, which has been declined on multiple

occasions.

a basis for exclusion.

So while it was untimely, the

So notice at this point is not applicable and not

When we then talk about whether there is a 702 issue

–- give me one second.

technical or specialized knowledge may serve as a basis for

expert testimony if there is a threshold showing that the

evidence is reliable, based on sufficient facts or data, and

has been reasonably applied to the facts.”

Rule 702 indicates that “Scientific,

I don’t have enough information to make that decision

at this point.

when this expert takes the stand on this issue, you may both

voir dire this witness, and we will then make a determination

based on that indication whether or not the information is

reliable based on sufficient facts and data and has been

applied to Mr. Spencer’s case.

What I’m going to invite you all to do is that

I will also expect argument on whether it goes to

weight versus admissibility; but at this point I want to hear

-12-

Bates #000752

the basis for how that table got created, and what those type

of tables are based on for me to make that assessment.

going reserve ruling on that until Mr. Taylor and Mr. Reichman

have an opportunity to voir dire the witness on that issue.

So I’m

Mr. Taylor.

MR. TAYLOR: Yes, just with the Court’s ruling, I do

want to make a record of why a continuance is not being sought.

THE COURT: That’s –-

MR. TAYLOR: Despite the finding that there was a lack

of –- insufficient notice.

has been set for trial more than once before, and one of those

times it was set for trial and was continued because of Covid,

which is obviously in non one’s control, but it does go to

Mr. Spencer’s right to have a speedy trial, and continuing at

this point after five years just is not acceptable to him.

that’s the basis, and I think that’s a speedy trial motion as

well, another grounds to exclude the testimony.

This case is from 2018, and this

THE COURT: So noted for the record, Mr. Taylor.

does not adjust my ruling.

discussion prior to getting started with the trial?

MR. TAYLOR: That’s all.

THE COURT: All right, thank you.

Do you have other matters ready for

I’m ready.

Mr. Reichman, open-

ing statement?

MR. REICHMAN: Yes, Judge.

The Court will, as the –-

let me first be –- this is the first bench trial I’ve ever

-13-

Bates #000753

done.

I almost submitted new jury instructions, and I figured

the Court is well aware of the law, so I did not do that.

But today the State’s case is relatively simple, your Honor.

The State has two witnesses.

We have Deputy Stilson

who was involved in the traffic stop, and also the blood draw

taken at the Utah County Jail from Mr. Spencer, and then we

have the State’s toxicologist, who’s no longer employed at the

State.

she will be here via Webex.

that was done back in 2018, and testify that the results she

got under the guidelines by the Utah State Crime Lab was a .08.

She’s employed in Arizona State down in Phoenix, but

She’ll testify as to the testing

I believe the Court will also hear testimony from

defense’s expert indicating that the blood was retested and

that the blood came back at a .079, which with error rates and

rounding, statistically speaking, the .079 is the same as a

.08.

Based on that and –- well, the Court will also hear

from Deputy Stilson regarding what he saw in the car when he

did make the traffic stop and made contact with Mr. Spencer,

as well as Mr. Spencer’s actions and other things he observed,

and the Court, based on the evidence presented, will be able to

find that the State has met its burden, and the Court can find

Mr. Spencer guilty beyond a reasonable doubt.

THE COURT: Thank you, Mr. Reichman.

Mr. Taylor,

would you like to make opening now or reserve?

-14-

Bates #000754

MR. TAYLOR: I’ll reserve.

THE COURT: Okay, thank you.

Mr. Reichman.

MR. REICHMAN: Yes, Judge.

The State will call Deputy

Stilson.

THE COURT: Deputy, if you’ll come up and be sworn,

Call your first witness,

please.

COURT CLERK: You do solemnly swear the testimony

you are about to give will be the truth, the whole truth and

nothing but the truth?

THE WITNESS: Yes.

COURT CLERK: Thank you.

CHAD STILSON,

having been first duly sworn,

testified as follows:

DIRECT EXAMINATION

BY MR. REICHMAN:

Good morning, Deputy Stilson, how are you?

Good morning, I’m well.

Good.

record.

It is Deputy Chad Stilson.

Could you spell your last name.

S-t-i-l-s-o-n.

Thank you, and Deputy, how are you –-

Thank you.

Could you please state your full name for the

-15-

Bates #000755

MR. TAYLOR: Mr. Reichman.

MR. REICHMAN: Yes.

MR. TAYLOR: Could you maybe slide that over a little

bit.

MR. REICHMAN: Oh, sorry, this way?

MR. TAYLOR: So I can see –- that way a tiny bit.

MR. REICHMAN: That way?

thing?

COURT CLERK: They’ll have to redo the cords.

Am I going to unplug any-

So if

you need to unplug anything –-

THE COURT: So let’s do this, Mr. Reichman.

MR. TAYLOR: Just a foot would be fine.

MR. REICHMAN: I can stand over here –-

THE COURT: You know what.

MR. REICHMAN: –- or there.

THE COURT: I was going to say why don’t we invite

Mr. Reichman to question from his table so that everyone can

see.

MR. REICHMAN: Okay.

THE COURT: Mr. Spencer, if I do that can you see over

the lectern?

MR. SPENCER: Yeah, I’m all right, I guess.

THE COURT: Okay, well, you –- let me tell you what

you can do, sir.

this way.

A couple of different things.

I can –-

You can move

You’re welcome to take a seat in the jury box.

-16-

Bates #000756

MR. SPENCER: Oh, I can see right here now.

MR. REICHMAN: I can move one way or the other over

here.

THE COURT: Yeah, whatever anybody needs to do,

Mr. Taylor, for you guys to see the witness properly, no

problem.

MR. REICHMAN: Thank you.

Go ahead Mr. Reichman.

BY MR. REICHMAN: Let’s see, did I ask you to spell

your last name?

Yes.

Did you already do that or no?

S-t-i-l-s-o-n, yes.

Okay, sorry.

You’re fine.

Can you tell me or tell the Court how you’re employed.

I’m a deputy with the Utah County Sheriff’s Office.

Great, and how long have you been employed at that

capacity?

With the sheriff’s office I’ve been there a little

over 13 years.

Okay, have you always been at the sheriff’s office

during your law enforcement career?

No, I also worked several years with the Utah Highway

Patrol, excuse me.

over 21 years.

I’ve been in law enforcement for a little

-17-

Bates #000757

All right, and were you employed with the Utah County

Sheriff’s Office in 2018?

Yes, I was.

Okay, and specifically looking at or going back –-

and I apologize, this is going back in memory a bit, but in

August of 2018 do you recall what your position with the Utah

County Sheriff’s Office was at that time?

deputy.

Yes, I was assigned to Vineyard City as a patrol

Okay, and during that time, approaching to August of

2018, you already indicated you were in law enforcement, but

were you a certified law enforcement officer?

Yes.

And was that done through the State of Utah?

It was.

Was it –- was your certification current at that

Yes.

Okay, I just want to go a little bit into –-

time?

MR. REICHMAN: And your Honor and Holly, I’m –- does

this still pick up with me standing up with the microphone; am

I okay?

THE COURT: should be fine.

MR. REICHMAN: I know I’m kind of loud, so –-

COURT CLERK: Oh, yeah, yeah.

-18-

Bates #000758

MR. REICHMAN: Okay, just want to make sure.

BY MR. REICHMAN: Let’s see.

Oh, so going to your

experience as a law enforcement officer, how much experience do

you have regarding driving under the influence investigations?

I’ve probably investigated well over 100 DUI incidents

over the course of my career.

recognition expert school and training, was certified in that.

So, yeah, quite a bit of experience over the years.

August 4th –-

Yes.

–- of 2018?

I’ve also been through the drug

Okay, and on –- were you on duty on the morning of

Okay, and do you remember what shift you

would have been on at that time?

A day shift.

A day shift?

Uh-huh.

Which would have started when?

Oh, schedules change over the years, but yeah, prob-

ably 5:30 or 6 when we start.

Okay.

All right, so in the early morning hours on

August 4th of 2018, did you have any interactions with Mr. –-

with a Mr. Dean Spencer?

Yes, I did.

Okay, and would you recognize Mr. Spencer if you saw

him today?

-19-

Bates #000759

Yes.

Do you see Mr. Spencer in the courtroom today?

I do.

He’s seated at the defense table.

MR. REICHMAN: Okay, your Honor, I would ask that the

record reflect that Deputy Stilson has identified Mr. Spencer.

THE COURT: Any objection?

MR. TAYLOR: No.

THE COURT: Record will so reflect.

MR. REICHMAN: Thank you, your Honor.

BY MR. REICHMAN: Okay, so you just indicated you did

have interactions with Mr. Spencer?

Correct.

Tell me how that started.

I was southbound on Geneva Road approaching 400 South

there in the Vineyard area, and I observed Mr. Spencer’s car,

which was eastbound on 400 South, and it made a right turn on

the southbound Geneva Road ahead of me.

so I know that his light was red.

I had the green light,

There was a sign posted there that says, “No right

turn on red.”

make that right turn without stopping then I initiated the

traffic stop.

So when I saw him enter that intersection and

Okay, and did –- so you initiated –- did Mr. Spencer

yield to –- to the traffic stop?

He did yield.

He took a little bit longer than

-20-

Bates #000760

necessary.

where he had taken his right hand and was moving something over

to the passenger seat.

field of view and then –- and then go back down, and then the

car pulled over and came to a stop.

I did notice some movement within the vehicle,

I could see a pillow come up into my

Okay, did that observation that you made during the

traffic stop, did that cause you any concern?

Yes, it was suspicious behavior.

Okay, is that common when you conduct a traffic stop

to see what you had observed?

Just depends on the

situation, I suppose.

Uh, not uncommon, not common.

Okay, so Mr. Spencer pulled over.

What did you do

Approached the vehicle, approached the passenger

next?

side of the vehicle and determined Mr. Spencer was the only

one in the vehicle and in the driver’s seat at the time.

soon as he rolled down the window and I could speak to him

I could smell a very strong odor of alcohol coming from the

vehicle.

open containers in the vehicle.

at that time.

I asked him if he had been drinking, if he had any

He just shrugged his shoulders

Okay, based on that behavior and your observations

what was the next step in your investigation?

Yeah, I explained to him because of the strong odor

-21-

Bates #000761

of alcohol, which is more than just breath alcohol, it was more

like there was an open container or freshly spilled alcohol in

the car, it was that strong.

observed that in his brief answers to me that he had –- his

speech was a bit slurred and he did have droopy eyelids.

believed further investigation was necessary at that point.

So I advised him to –- and I also

Okay, and what further investigation was that?

I asked Mr. Spencer to step out of the vehicle.

So I

Well, I asked him again if there was another –- if there was

an open container of alcohol in the vehicle, and told him that

based on my observations that I had a probable cause to search

the vehicle and he just said, “Well, you’ll have to search.”

Okay, so did you –- did Mr. Spencer exit the vehicle?

Yes, I asked him to step out of the vehicle and step

to the back of the car, which he did.

he took kind of slow shuffle steps towards the back of the car

and kind of held onto the side of the trunk as he moved around

to the back of the car.

As he did so I noticed

Okay, once he was at the back of the car, did you

know who he was at that point?

I’m trying to recall.

I know we had a brief conver-

sation before that, but honestly, if he gave me his name then

or later, I don’t recall.

Okay, did you ever have occasion during the traffic

stop to run –- to run his information?

-22-

Bates #000762

I did, yes.

Okay, did you find anything pursuant to that search

of the records?

Yes, I did locate a Utah driver’s license from

Mr. Spencer that was showing denied pending the reinstatement

fee, and showed one qualifying conviction and arrest on his

record.

Okay, and so at that –- yeah, what did you –- what

did you do next?

At that time I asked him to step to the front of the

vehicle so that I could search the vehicle and kind of keep

an eye on him and keep him out of traffic, but he would not

comply.

him so I could further my investigation, and placed him in

handcuffs and placed him in the back of my vehicle.

So at that point I told him I was going to detain

Okay, did you ever have a discussion with Mr. Spencer

about completing any field sobriety tests?

Yes, I did.

When –- after I searched the vehicle

and found open containers of alcohol in the vehicle, and based

on my observations of his demeanor, then I went back to him

and advised him what I’d found and requested that he submit to

field sobriety tests.

What was his response to that?

He just –- he wouldn’t answer.

Okay, so no yes, no no?

-23-

Bates #000763

No, no response.

Okay, and you indicated just now that you did search

the vehicle?

Correct.

Okay, and tell me what you –- what was found in the

vehicle.

On the front passenger seat there was that pillow

that I had seen earlier, and under the pillow and wrapped up in

a –- in a towel I believe there was an open container of Busch

beer, can of Busch beer, and also a large drink mug.

the lid on the drink mug and you could smell the odor of an

alcoholic beverage within that mug, which seemed to be mixed

with something like a soda or something.

MR. REICHMAN: Okay, your Honor, could I approach the

I opened

witness.

THE COURT: Continuing permission.

MR. REICHMAN: Thank you, your Honor.

THE WITNESS: Thank you.

BY MR. REICHMAN: Deputy, I apologize now for the

quality of my printer ink, but do you recognize what I just

handed you?

Yes.

What is that?

That’s the open containers I found in Mr. Spencer’s

car.

-24-

Bates #000764

picture of –- from what was taken back in 2018?

Yes, it does.

MR. REICHMAN: Okay, your Honor, I would move to admit

Okay, and does it appear to be a true and accurate

this as State’s Exhibit No. 1.

THE COURT: Any objection?

MR. TAYLOR: No.

THE COURT: So received.

(Exhibit No. P-1 received into evidence)

MR. REICHMAN: I have a copy for the Court as well.

THE COURT: Okay, great.

MR. REICHMAN: Can I approach?

THE COURT: Yes, I’ll take it.

Thank you.

BY MR. REICHMAN: I’m not going to take complete

responsibility for the ink.

It may be the quality of the

camera five years ago, too.

Let’s see, but –- all right, did

you find any –- did you –- so that you said was found in the

passenger compartment of the car?

Correct.

Or not compartment, but seat?

Yes.

Okay, did you find anything else?

Yeah, in the trunk there were several empty open cans

of beer and a half consumed bottle –- well, half empty bottle

of Vodka.

-25-

Bates #000765

Okay, at that point in time –- I apologize, I mixed

up the time line a little bit, but it sounds like you searched

the vehicle and then had the discussion with Mr. Spencer about

the field sobriety tests?

Correct.

Okay, so after the vehicle was searched, after you

had the discussion with Mr. Spencer about the field sobriety

tests, what did you determine?

At that point I determined that Mr. Spencer I believe

was not capable of safely driving a motor vehicle, and that he

was impaired, and placed him under arrest.

Okay, and where did you go from there?

Then we transported to the Utah County Jail.

requested Forensic Nursing Services to meet us there for a

blood draw.

Okay, did you ask Mr. Spencer if you could take his

blood?

I did.

I read the chemical test admonition –- I

explained that he was under arrest for DUI and open containers

and the driving on denied license.

admonition to him, and requested that he submit to a blood

test, and he did not respond to any of these requests.

I read the chemical test

Okay, and before I forget, because I already have,

I’m going to go back in time just a little bit.

rewind the clock.

So let’s

You indicated that you saw Mr. Spencer on

-26-

Bates #000766

Geneva Road making a right-hand turn onto Geneva Road when you

initiated your traffic lights?

Correct, correct.

Do you recall what time that was?

Time of the stop was 06:56 in the morning.

Okay, thank you.

So now we can fast forward back

to when you arrived at the jail.

You indicated you read

Mr. Spencer the rights regarding the blood draw?

Correct.

And his response was?

There was no response.

Okay, so with no response, no consent, what did you

do next?

I requested –- I filled out a request for a warrant

for a blood draw.

MR. REICHMAN: Okay, do you want a copy now or –-

THE COURT: I’ll take it now, thank you.

BY MR. REICHMAN: Deputy Stilson, do you recognize

what I just handed you now?

Yes.

What is that?

This is the approved search warrant for obtaining

Mr. Spencer’s blood sample.

Okay, and so the procedure, you indicated you filled

out a –- well, let me just do this first.

Sorry.

Does that

-27-

Bates #000767

appear to be a true and accurate copy of the search warrant

obtained in this case?

Yes.

MR. REICHMAN: Okay, your Honor, I would move to admit

the search warrant as State’s Exhibit No. 2.

THE COURT: Any objection?

MR. TAYLOR: No.

THE COURT: So received.

MR. REICHMAN: Thank you.

(Exhibit No. P-2 received into evidence)

BY MR. REICHMAN: So the procedure for taking someone’s

blood when there is no consent, you indicated you applied for a

search warrant.

before or after the search warrant was approved?

Would the –- would the blood have been drawn

After.

Okay, and do you specifically remember that the blood

was not drawn until after the search warrant was –-

Yes.

Okay, could you take a look at that search warrant

and tell us what time that search warrant was approved.

08:25 a.m.

Okay, so the blood was taken sometime after 8:25 in

the morning?

Correct.

Okay, do you recall how long after the search warrant

-28-

Bates #000768

was approved that the blood would have been drawn?

Yeah, I actually did write down the time of the blood

–- actual blood draw when the sample was obtained, which was at

8:38.

Okay, thank you.

So what happened when –- when

that search warrant was approved and Mr. –- did you inform

Mr. Spencer that there was a search warrant?

I did.

I informed him that the warrant had been

approved by a Judge and gave him a copy of that warrant.

Did he –- what was his response to that?

He just said something to the effect that he was

going to sue –- sue them.

Okay, sue who?

I believe the forensic nurse or us or the jail or

whoever he was talking to at the time.

Okay, but ultimately the blood was –- was drawn?

Yes, he did not physically resist that.

Okay, and after the blood was drawn, are you aware of

what happens next to that –- to the blood?

Yeah, the forensic nurse packages that up and dates

it and signs it and then takes it to the State Toxicology Lab.

MR. REICHMAN: Okay.

All right, I don’t have any

further questions for Deputy Stilson.

THE COURT: Cross examine, please, Mr. Taylor.

MR. TAYLOR: Yes.

-29-

Bates #000769

CROSS EXAMINATION

BY MR. TAYLOR:

On that search warrant –- did you write this search

warrant?

I completed an electronic online request for the

search warrant and then the Judge –Q.

Okay, so the second para –- or the third paragraph

after that, is that something you wrote?

This is something that the Judge wrote.

In my

original request for the search warrant, contained that same

terminology that I wrote, but –-

Okay.

–- they’re including that here in the approved search

warrant.

And that includes Mr. Spencer’s date of birth, Social

Security number and his height.

information.

Did you measure his height?

I got his height and weight from his driver’s license

MR. TAYLOR: Okay, so your Honor, I would object to

that under hearsay, that that is not admissible.

THE COURT: State’s response?

MR. REICHMAN: Yes, Judge.

that he ran his driver’s license information.

a record that is kept for purposes –- for business records

purpose, and that Deputy Stilson can certainly rely on the

Deputy Stilson indicated

I think that’s

-30-

Bates #000770

information obtained from the Driver’s License Division.

THE COURT: Mr. Taylor.

MR. TAYLOR: He can rely on it.

It’s not admissible

as a fact.

It’s an out-of-Court statement that can’t be

admissible to prove that he was that weight.

THE COURT: Overruled.

No. 1, it’s a business record,

and No. 2, it’s your client’s information that got put on the

driver’s license based on him filling out an application.

it’s a statement against interest, at minimum.

(Counsel conferring with defendant off the record)

THE COURT: Officer, remind me what the driving

pattern was again, please.

THE WITNESS: It was just a traffic offense, making a

right-hand turn on a red light where it’s posted no right turn.

THE COURT: All right, thank you.

MR. TAYLOR: May I approach.

THE COURT: Continuing approaching, Mr. Taylor.

THE WITNESS: Thank you.

BY MR. TAYLOR: I’ve just handed you a document.

you recognize that?

I do.

Okay, and what is it?

This is the printout for his driver’s license.

Okay, and this is the information where you –- this

is the driver’s license information where you took the weight

-31-

Bates #000771

from?

Correct.

Okay, and on that document does it state when this

driver’s license was issued?

Yes, January 12th, 1995.

MR. TAYLOR: Okay, I would ask to enter this into

evidence as –-

THE COURT: Any objection?

MR. REICHMAN: No objection.

THE COURT: Court will receive it.

Thank you, Mr. Reichman.

I believe that’s State’s 3.

It’s actually going to be, I apologize, it’s Defendant’s 1.

(Exhibit No. D-1 received into evidence)

MR. TAYLOR: Your Honor, I apologize for not being

ready on some technical issues.

I think the Court is aware

that our office has had some personnel issues.

an additional calendar load, and don’t have all the technical

issue worked out.

I’ve taken on

I do want to show a video.

THE COURT: Okay.

MR. TAYLOR: It’s the dash cam.

MR. REICHMAN: I’ve got it.

on the computer that we an plug in.

I’ve also got it on a USB drive.

So I have it on –- ready

That’s the easiest, or

I don’t know what –-

THE COURT: Josh, can we use our laptop for that?

COURT BAILIFF: I’m sure it’s in the (inaudible).

-32-

Bates #000772

MR. REICHMAN: I can plug this one in, too.

COURT BAILIFF: Okay, we’ll grab that one.

THE COURT: Please do.

So what we’ll do, folks, is we

have a laptop that we just can plug in right to this computer.

MR. REICHMAN: Okay.

THE COURT: Then everybody can see it.

MR. REICHMAN: Just for efficiency, I guess is the

word I’m looking for, I’ll stipulate to it, to the video coming

in, so you don’t have to –-

MR. TAYLOR: Okay.

MR. REICHMAN: –- go through laying –-

THE COURT: Okay, thank you.

MR. REICHMAN: If you trust me that I did not doctor

the copy that’s on the USB drive.

MR. TAYLOR: Well, I’ve watched it –-

MR. REICHMAN: Okay.

MR. TAYLOR: –- several times.

So I’ll know if you

doctored it.

MR. REICHMAN: Okay, I don’t have a –-

THE COURT: Okay, gentlemen, while Josh gets that

started, let’s take a brief break.

I need to speak to Counsel

in the back for just a couple of minutes.

MR. TAYLOR: Okay.

COURT BAILIFF: Do you want to step down.

You can sit

up –-

-33-

Bates #000773

THE WITNESS: I’m good.

THE COURT: Go ahead –- go ahead and move about.

This is a comfortable chair.

We’ll be in recess for just a couple of minutes.

(Recess taken. Discussion in chambers off the record)

COURT CLERK: Okay, Ryan, you’re good.

BY MR. TAYLOR: The State has stipulated to this, so

I’m just going to play it.

Does this look familiar to you?

Yes.

What is it?

Geneva Road.

Okay, and the video itself, what is it?

My dash cam video from my vehicle.

Okay.

(Video played in Court.

scribed to a reasonable degree of accuracy due to all

the radio traffic and road traffic.

video for review.)

Recording cannot be tran-

Please refer to

BY MR. TAYLOR: Is that a fair and accurate depiction

of what happened that morning?

Yes.

MR. TAYLOR: We could continue to play the whole

thing, but I don’t need to show anymore.

Just one moment.

THE COURT: You’re fine.

MR. TAYLOR: No further questions.

THE COURT: Redirect?

-34-

Bates #000774

MR. REICHMAN: Just very briefly, your Honor.

not going up there, sorry.

REDIRECT EXAMINATION

Oh, I’m

BY MR. REICHMAN:

Deputy Stilson, I just want to ask you briefly about

the procedures for when booking somebody into jail.

–- is it –- is it common for height and weight to be taken?

No.

No, it’s not.

Okay, then never mind.

Are there

After watching

this video just now, it sounds like you had a conversation with

Mr. Spencer while you were in the car; is that accurate?

Correct.

After watching this video do you recall asking

Mr. Spencer if he had had anything to drink that morning?

Yes.

Do you remember what the answer was?

He didn’t answer the question.

Okay, he didn’t, okay.

MR. REICHMAN: I don’t have any further questions.

THE COURT: Anything else, Mr. Taylor?

MR. TAYLOR: No.

THE COURT: Officer, you’re welcome to step down.

Thank you so much.

THE WITNESS: Thank you.

THE COURT: Mr. Reichman, your next witness.

-35-

Bates #000775

MR. REICHMAN: Judge, the State’s next witness will be

the State toxicologist or crime lab expert.

Abbott.

Her name is Lori

THE COURT: Is Ms. Abbott appearing remotely?

MR. REICHMAN: Ms. Abbott will be appearing remotely.

She’s in Arizona and ready to jump on.

THE COURT: Is she ready to go?

MR. REICHMAN: Yeah, I just have to text her and tell

her, and she’s ready to go.

THE COURT: All right, so Holly, do you need me to do

anything to pull up anything or give you that number or –-

COURT CLERK: (Inaudible).

THE COURT: All right, so let’s do this, folks. What’s

going to happen, Mr. Spencer, is that we’re going to –- we did

figure out how to make sure that the computer’s going to work

right. We’re going to call in. We have to attach the recording

and do a couple of different things.

you and I are going to be able to take a little bit of a break,

okay?

up, move around if you like.

MR. SPENCER: Okay.

THE COURT: Then Officer Fredrickson will let me know

I’m going to step in the back.

While that gets done,

You’re welcome to get

when everyone’s ready for us, okay?

MR. SPENCER: Okay.

(Recess taken)

-36-

Bates #000776

THE COURT: Sounds great.

All right, Mr. Taylor,

Mr. Spencer, Mr. Reichman, may I leave it on this format since

I’ve got everyone working?

MR. TAYLOR: Yes.

Does the Court have it on your

screen as well?

THE COURT: I have it on mine as well.

MR. TAYLOR: Could we turn it a little bit, then?

THE COURT: That’s fine.

So, Mr. Spencer, just so we’re clear, I see the exact

same thing you do.

okay?

Absolutely.

Perfect.

That’s how it’s hooked up to my computer,

MR. SPENCER: Okay.

THE COURT: All right, Ms. Hogard, you tell me when

we’re back on the record.

COURT CLERK: We are.

THE COURT: All right, Mr. Reichman, we’re back on the

record in State v. Dean Spencer.

MR. REICHMAN: Judge, the State would call Ms. Lori

Call your next witness.

Abbott.

THE COURT: Ms. Abbott, good morning.

Raise your

right hand.

Let me turn on my video so you can see me for a

moment.

nothing but the truth in this morning’s proceeding?

Do you swear to tell the truth, the whole truth and

THE WITNESS: I do, yes.

THE COURT: Thank you.

Your witness, Mr. Reichman.

-37-

Bates #000777

LORI ABBOTT,

having been first duly sworn,

testified as follows:

DIRECT EXAMINATION

BY MR. REICHMAN:

okay –-

Good morning.

–- from this other microphone, it sounds like?

I can.

Thank you for asking.

Okay.

All right, could you please state your full

All right, good morning, Ms. Abbott.

Can you hear me

name and spell your last name for the record.

My name is Lori Abbott, A-b-b-o-t-t.

Thank you.

I’m a Forensic Scientist with the Scottsdale Police

Department.

Okay, how long have you been a forensic scientist?

Total for eight years.

Okay, you said you’re currently with the Scottsdale

What is your occupation?

Police Department?

Correct.

How long have you been with Scottsdale Police Depart-

Since March of 2020.

Okay, and where were you employed prior to that?

ment?

-38-

Bates #000778

From 2007 to 2015 I was a crime scene investigator

for the Phoenix Police Department.

So I handled crime scenes,

document those scenes first, and collect and preserve items of

evidence.

working for the Utah Department of Health Bureau of Forensic

Toxicology as a forensic toxicologist.

In 2015 I moved to Salt Lake City, Utah, and started

So I received training and further education in

forensic toxicology, and analyzed biological samples submitted

by every law enforcement agency in the State, as well as

samples from the Medical Examiner’s Office.

That was from 2015 to 2020?

Yep, correct.

Okay, and then 2020 to present with the Scottsdale

Police Department?

Yes, I’m in the blood/alcohol unit, so I still test

blood (inaudible) alcohol.

controlled substances section.

if it contains and drugs that are controlled either State or

Federally.

I’m also class trained in the

So I test (inaudible) to see

Okay, and what kind of schooling did you complete to

become a toxicologist?

I have a Doctor’s of Science in Chemistry from Cedar

Crest College in Allentown, Pennsylvania, and I graduated in

2006.

Arizona State.

As of May of this year I have a Master’s in Science from

-39-

Bates #000779

Okay, and then are you a member of any professional

societies or associations associated with your –- with your

job as a forensic toxicologist?

I am.

I’m a member of SWAFS, the Southwestern

Association of Forensic Scientists.

MR. REICHMAN: Okay, let’s see, I’m going to go first

–- we indicated earlier, your Honor, that we wanted to do the

voir dire, correct?

THE COURT: Yes, that’s correct.

MR. REICHMAN: I’m going to do that before we go into

any fact questions with her.

THE COURT: Okay, that’s fine.

Mr. Taylor, do you

agree?

MR. TAYLOR: Yes.

MR. REICHMAN: Is that –- do you want me to go in that

manner?

THE COURT: That sounds great.

MR. REICHMAN: Okay.

Go ahead.

BY MR. REICHMAN: All right, Ms. Abbott, throughout

this process I’ve been communicating with you.

–- I believe the term you used was elimination rates.

Yes.

Okay, in what –- can you –-

We talked about

MR. TAYLOR: Your Honor, I’m sorry, I just noticed

that my expert has disappeared.

-40-

Bates #000780

THE COURT: Do you need to find out what happened?

MR. TAYLOR: Yes, please.

MR. REICHMAN: I saw he raised his hand for a second.

THE COURT: I put his hand down –-

MR. REICHMAN: Oh, you did.

THE COURT: –- because I didn’t want him interrupting

the testimony.

MR. REICHMAN: Got it.

BY MR. REICHMAN: Sorry, Ms. Abbott, we’re just pausing

for a moment.

That’s fine.

THE COURT: He’s back.

MR. TAYLOR: Yes.

MR. REICHMAN: Do you want to make contact to sure he

Mr. Taylor, he’s back.

Okay, thank you.

can hear us or anything?

MR. TAYLOR: He can.

MR. REICHMAN: Oh, okay.

MR. TAYLOR: –- I think we’re good.

THE COURT: All right, thank you.

MR. REICHMAN: Okay.

THE COURT: Okay, go ahead and resume questioning,

Mr. Reichman.

I’m just –-

BY MR. REICHMAN: All right, so Ms. Abbott, so we

just started to talk about the discussion that you and I had

regarding elimination rates.

-41-

Bates #000781

Correct.

Could you tell me what background or experience you

have in regards to elimination rates?

So ethanol or drinking alcohol is probably one of

the best or well known study drugs that we have, based off of

clinical testing, on-the-road testing, dosing studies, hospital

settings.

the body is, sorry to go back to it, very well studied.

there are hundreds of journal articles, discussions (inaudible)

and just years of study.

Elimination rate –- the elimination of ethanol from

Okay, so the notion of elimination rates is well

known within the scientific community of toxicologists?

Yes, of anyone who performs blood/alcohol testing,

and we express this as (inaudible) slow elimination, an average

elimination rate, or a fast elimination.

Okay, and could you tell me what do you mean by

“elimination rate”?

So that’s the removal of a set amount of, in this

case, ethanol from the body.

Okay, and through what process?

Through the process of ethanol being distributed in

the body, going through the kidneys, liver, and then being

excreted through urine.

Okay, and have you –- in regards to calculating an

elimination rate or a projected BAC based on –- I guess that’s

-42-

Bates #000782

probably the better term to say, right, a projected BAC based

on elimination rates; am I –-

Yes, at some point previous in time.

Okay, have you had any specific training on conducting

those calculations, or is this coming from studies you have

read?

Walk me through that a little bit.

Yeah, so I was trained and tested on calculations

definitely here in Scottsdale.

One module was just on calculations, learning how to take a

like (inaudible) test, and I had to get the answers correct.

Then I had to (inaudible) test and get those answers correct.

We did some training in Utah.

Okay, and when calculated that projected or –- well,

I guess projected BAC level, what information is needed to make

that calculation?

So to go back in time, really, I need like a time

scale one, I need from the time to go back to.

the stop time, like when a car was pulled over or stopped, and

the time of –- time of the blood draw, because the reported

BAC is to be at the time of the blood draw.

assumptions when I do that calculation.

So I’ll need

I will make some

I assume that the person has a full stomach. I assume

that there are no medical conditions that would greatly affect

the metabolism –- ethanol, and then I report a range of –- I

mute the range of elimination rate for the calculation, and

I’ll report a range of possible BAC’s.

-43-

Bates #000783

Okay, and in this case were you ever provided the

information as to the stop sign –- well, sorry –- yeah, stop

time and blood draw time?

I was.

Okay, and do you recall what those times were?

I would have to refer to my email –-

Okay.

–- chains.

And if you referred to your email would that refresh

your memory?

It would, yes.

Okay.

May I?

Yes, please.

(Witness reviewing email).

So I have a 1.7 hour time

difference between the blood draw and the stop time.

Okay, and would that correspond to a stop time of

6:56 a.m. and a blood draw time of 8:38 a.m.?

It would, yeah.

Okay.

THE COURT: Ms. Abbott, was that 1.5 or 1.7 hours?

THE WITNESS: 1 point –- 1.7.

THE COURT: Thank you.

MR. REICHMAN: No, don’t be.

I’m sorry.

Thank you.

BY MR. REICHMAN: You indicated that you would make a

-44-

Bates #000784

couple assumptions, obviously.

one that I recall.

the elimination rate?

So full stomach is the first

How would a full or empty stomach affect

So a majority of ethanol absorption happens in the

intestines.

emptying of the stomach to the intestines will affect the

absorption of alcohol.

stomach, I assume it would take as long as it possibly could

to distribute or to empty the stomach into the intestines.

So anything that hastens or like slows down the

So by fulling a –- by assuming a full

this right.

Yes.

Okay, and an empty stomach would speed it up?

Correct, because that would be like immediately

Okay, so a –- let me just make sure I’m catching

A full stomach would slow the absorption rate?

emptied into the intestines.

Okay, and the ranges that you –- that you discuss,

the slow, average and fast elimination rate, would it be a

correct statement that that assumption would be accounted for

within those ranges?

you’d be looking closer at that slow elimination rate range,

and then if the subject had an empty stomach, closer to the

fast –- like is that why the range exists, I guess, to account

for unknowns?

Meaning if the subject had a full stomach

You know, so what would be (inaudible), so the

elimination is on the opposite side of the curve as absorption.

-45-

Bates #000785

So the elimination rate is after alcohol has been absorbed and

someone’s starting to eliminate all of it from the body.

Okay.

Because at some point drinking has to stop.

Okay, so I guess my question is is the assumptions

that you made, whether or not there are illnesses, whether or

not there’s a full stomach, those are taking into –- or those

are taken into account with the various ranges of elimination?

Yes, (inaudible) to be able to do these calculations

you’ll need to assume all of these things, because we don’t

know them.

Okay, and so I believe you told me a slow elimination

is 0.010 per hour.

Correct.

So you would expect to see something in that range

if somebody had a full stomach?

If someone had full –- if all the absorption of

ethanol had taken place, and we were now in the elimination

phase, I would use that 0.10, add it to their recorded BAC to

go back in time.

Got it.

Okay.

Okay, and then –- okay, and when you

were –- when you calculated the numbers that you provided, you

already indicated that you were given the stop time as well as

the blood draw time.

these numbers would also be affected by the gender and size of

Am I correct in making a statement that

-46-

Bates #000786

an individual?

Yes, so men and women absorb/distribute alcohol

differently.

similar between both sexes.

bution of ethanol, but that absolutely can take an effect.

Elimination tends to be pretty average, or like

This more happens with the distri-

Okay.

Or have an effect, sorry.

Okay, so those numbers are taken into account in your

calculation?

Yes, and again, these are general numbers.

That’s

why we also report that range of overall –- states a range of

(inaudible).

Okay, and in this case were you provided the gender

and weight of the subject?

I was, yes.

Okay, do you recall what those were?

So if I refer back to my email, to the male at 175

pounds.

MR. REICHMAN: Okay, I don’t have any further questions

regarding her expertise.

THE COURT: Mr. Taylor, cross exam on this issue?

MR. TAYLOR: Yeah.

CROSS EXAMINATION

BY MR. TAYLOR:

So in your report you state that there’s a theoretical

-47-

Bates #000787

BAC in one standard drink of .025 for a male 175 pounds; is

that right?

Correct.

You said that word “theoretical” because that is an

average –- the average person of that –- of those character-

istics; 175 pounds, male?

Yes, correct.

It has to be a theoretical because you don’t know the

BMI of the subject?

Yes, exactly.

Or the water content?

Yes, correct.

Or there’s probably several other factors that could

affect it?

Absolutely.

Could you list some of those factors?

Height, weight, they might (inaudible) test on that,

a medical condition.

they’re going to absorb or have a different calculation that’s

going to need to be taken into account.

average, average numbers.

If someone has had gastric bypass surgery

So these are just

Now, you have to assume for this equation that the

alcohol has been fully absorbed?

For the (inaudible), yes.

Okay.

-48-

Bates #000788

I’m sorry, I think I forgot to (inaudible).

Now, the equation is still an estimated BAC, is equal

to the BAC plus the elimination rates times the elapse of time

in hours, right?

Correct.

And that equals the estimated BAC.

That’s still just

an estimate, right?

Absolutely, yes.

Because of all of the things that you don’t know

about the subject?

Yes, exactly.

Okay, and the –- the assumption that the alcohol

has been fully absorbed, could you –- is there –- is there a

calculation for absorption rates, an equation for that?

There is not.

No.

There is not.

Why not?

That’s something different.

That

depends on how fast someone’s drinking, whether they’re drink-

ing (inaudible) quickly to someone who’s drinking slow.

Okay, so you just –-

The flow of the bloodstream can change, depending on

how someone’s drinking.

Okay, and you’ve –- you’ve kind of indicated with

your hand a slow –- so we’re talking about –A.

Uh-huh.

-49-

Bates #000789

–- basically a bell style curve graph, right, where

the alcohol –- it’s assumed also that the alcohol is going up

as it’s absorbed in the blood, peaking at some point, and then

going back down; is that correct?

Yes, although it won’t –- like it won’t be like a

perfect bell curve, like you know, up and down.

will change (inaudible) well.

depending on the factors that we talked about.

These slopes

The slope of these will change

Okay, so the only calculation that you have that

you can apply with the assumptions that you’re making is the

elimination rate, the back side of that curve?

Yes, because at some point drinking has to stop.

Absorption is still happening after the –- after drinking has

stopped, and then someone has to be eliminating at a like

(inaudible).

MR. TAYLOR: Okay, that’s all I have.

THE COURT: Anything further?

MR. REICHMAN: I don’t have any –- no followup as to

this issue, your Honor.

THE COURT: All right, so now that we’ve voir dired

the witness, Mr. Taylor, would you like to make any further

argument as to your objection?

MR. TAYLOR: I would.

I would like to do it not in

the presence of the witnesses, as to not affect their future

testimony.

-50-

Bates #000790

THE COURT: They’ve just been muted.

MR. TAYLOR: So, your Honor, I’m not objecting –- I

think Ms. Abbott may be –- I wish she could hear this now, but

I think she’s fully qualified.

someone who knows about this subject.

She’s very well established as

I think that’s obvious.

I think that the issue, though, here under Rule 702

is that –- that the testimony –- the expert testimony is based

upon sufficient facts or data, and have been reliably applied

to the facts.

they are, you know, established, accepted in the community as

averages of what elimination rates are.

So I believe that the –- the BAC calculations,

The problem here, though, is that there are so many

important assumptions, including that the testimony so far is

that there is an open container of alcohol in the car, which

means the consumption –- that the assumption that it’s been

fully absorbed is already contradicted by the evidence.

So the front side of that graph of where the blood,

alcohol level is going, the absorption is being fully ignored.

So her assuming that is already false.

not reliable.

the facts that we already have, it’s not appropriate expert

testimony under 702.

We already know that’s

Because it’s not reliable, reliably applied to

THE COURT: Mr. Reichman’s, State’s response.

MR. REICHMAN: Judge, and I think I probably made this

argument earlier, but the State’s position is that the –- it

-51-

Bates #000791

has –- I mean, assuming that the –- the methods are reliable,

which I think we all conceded that they are, they have been

reliably applied to the facts of this case, according to the

facts that we have available, which is why there’s a range

here.

Again, this all then goes to weight of the evidence.

Obviously it’s not –- it’s not an exact science in this situa-

tion with the facts that are available, and I think the Court

is certainly capable in considering the weight of the evidence

in this situation if Ms. Abbott were to testify in regards

to these generalities surrounding retrograde analysis or

elimination, whatever we want to call it, but yes, that would

be the State’s argument.

THE COURT: Any final comments, Mr. Taylor?

MR. TAYLOR: No.

THE COURT: All right, I have in front of me an objec-

tion and a motion in limine to Ms. Abbott’s testimony in that

the defense maintains that the evidence provided under 702

would not be based on sufficient facts or data and has not

been reliably applied to the facts.

under the reliability of the science and the math behind it

essentially; is that a safe statement, Mr. Taylor?

There is no objection

MR. TAYLOR: Yes.

THE COURT: All right, then No. 1 in 702 does not

-52-

Bates #000792

apply.

That’s been conceded.

No. 2 is based on sufficient

facts or data.

showing in the voir that we’ve just done, that there are

sufficient facts or data to discuss elimination rates, and

that they are a rate that has been widely studied in the field,

and that they can be discussed with a reasonable degree of

expert certainty.

I find that the State has made a prima facie

In terms of have they been reliably applied to these

facts, the assessment that has been provided to me at this time

is that there have been –- and I agree with the defense that

there have been assumptions made, and that those assumptions

have created a certain set of testimony.

That then goes to the weight of whether or not this

is helpful to the trier of fact, which in this case today is

me.

information inadmissible as a whole.

admissible for discussion.

I do not find that it rises to a level that it makes that

I believe that it is

I fully expect it to be vigorously cross examined,

and I will take it into account based on the examination of the

parties, but it will be allowed as testimony.

is denied.

don’t recall how you couched it, Mr. Taylor.

If it was couched as an objection, overruled.

Go ahead and resume your examination, Mr. Reichman.

Motion in limine

BY MR. REICHMAN: All right, Ms. Abbott, because we

are live here in Court and you’re there, I had previously

-53-

Bates #000793

emailed you a copy of what is –- what I’m going to suggest is

the –- your toxicology –- the final report in this case.

you have a copy of that?

I do, yes.

Okay, and just to make sure, what you’re looking at

and then the paper copy I have here is one and the same.

just want to ask you –- and do you have that available?

I do.

Okay.

–- on my screen.

Okay, so let’s start with in the –- in the top right

corner under “Lab Information.”

Would the Court like a copy?

THE COURT: Mr. Taylor, any objection to me having a

What is the –-

MR. REICHMAN: Well, should I disseminate this first?

I’m looking at it –-

copy at this time?

MR. TAYLOR: No.

MR. REICHMAN: Do you have it as well?

MR. TAYLOR: I have it.

MR. REICHMAN: Okay.

THE COURT: Thank you, Mr. Reichman.

BY MR. REICHMAN: All right, sorry Ms. Abbott.

On the

top right corner under “Lab Case Number,” could you read to me

what that case number is?

L2018-05070.

-54-

Bates #000794

The sample number, what number is that, right below

1325395.

Does it –- does this piece of –- well, again, under

that?

“Date Received,” what date was the sample received at the lab?

August 9th of 2018.

And the subject name?

Spencer, Dean M.

MR. REICHMAN: Okay, your Honor, I think we’ve –- I

think it’s clear that she’s looking at the same copy that we

are all looking at here live in Court, and I would move to

admit this as State’s Exhibit 3.

THE COURT: Any objection?

MR. TAYLOR: No.

THE COURT: So received.

(Exhibit No. P-3 received into evidence)

BY MR. REICHMAN: All right, thank you, Ms. Abbott.

So I think I just already asked you this question, but on what

date did the State Crime Lab receive the sample in this case?

August 9th of 2018.

Okay, and what type of sample was this?

I received an analyzed a sample of blood.

Okay, so after you received the sample, or it was

received at the State Crime Lab in August or 2018, what do you

–- what do you do with it?

-55-

Bates #000795

So like right when it comes into the lab?

Yeah.

Okay, yeah.

So a samples are received –- or they

were received, they still are received by several receivings.

They can receive samples either in mail or in person.

open up packaging, assign a laboratory case number, or medical

(inaudible) number, depending on the case.

number, and then affix a bar code to the sample.

They

Assign a sample

At that point the samples make their –- made their

way upstairs into our storage refrigerator.

So when it is my

turn to perform any tests or analysis –- sorry, I’m speaking –-

I’m trying to speak in like past tense, but it’s hard.

I will –- I generated a list of samples that will now

be analyzed, retrieve samples from the storage fridge, perform

that test, and then return the samples to the storage fridge.

Then when all tests are completed, samples are sent back to the

submitting agencies.

Okay, and what is the test you use to find out how

much alcohol there was in the blood?

So ethanol testing is performed by a headspace

gaschromatography.

I’m going to take your word on that.

I have no idea

what that means.

It’s HGC.

And that test is a –- so you use that test in the

-56-

Bates #000796

Utah State Crime Lab during your employment, correct?

Correct, yeah.

Is that the same test you now currently use in your

employment in Scottsdale?

It is.

You did say Scottsdale, right?

Yes, perfect.

Okay, and what safeguards are there, or do you take

to make sure the test results themselves are accurate?

So the –- everything –- like when a portion of blood

is taken out of each vial and placed into a glass container, a

vial for testing, that vial is labeled with the sample number.

The vial positions were double checked by a second analyst, and

then each –- the back data is reviewed, and then the case will

be reviewed.

Okay, and did you –- so what were the results in this

particular case?

Ethanol via headspace gaschromatography 0.08 grams

per 100 milliliters of blood.

Okay, and now at the Utah State –- Utah State Crime

Lab, you just indicated that the results were 0.08 grams per

100 milliliters of blood, are you aware at the time at least in

2018, was the Utah State Crime Lab a certified lab to conduct

these types of tests?

They were accredited.

-57-

Bates #000797

Accredited, okay, and do you know anything about that

accreditation process in the State of Utah?

I do.

Okay, so how did –- or does the Utah State Crime Lab

I did.

become accredited?

So the lab at the time was accredited by the American

Board of Forensic Toxicology.

an outside entity that the laboratory is performing testing

appropriately, recording appropriately, and following all

their appropriate policies and procedures.

the accreditation cycle, like how often someone comes to the

laboratory and reviews, like actually like goes to the lab and

reviews.

So that is acknowledgment from

I don’t remember

Okay, but at the time, as far as you are aware, the

lab was accredited?

Yes, and it states it at the bottom of the report in

the bottom left-hand corner.

Okay, and in regards to that accreditation, your

results are reported at a 2 decimal point range –- or I don’t

know range, but re –- number?

Yeah.

Okay, is that –- was that reporting –- so reporting

at a 2 decimal point level, or rounding to the hundredths

position, was that common practice in –- in your work at the

Utah State Crime Lab?

-58-

Bates #000798

I will (inaudible) and say truncating the second

decimal place (inaudible).

“truncating”?

numbers.

Okay, thank you.

Okay, and what do you mean by

Truncating is like the setting off the (inaudible)

So there’s no rounding.

Oh.

(Inaudible) places every number following that is not

included.

Okay.

All right, do you re –- do you recall what the

untruncated –- is that a word?

Yes.

Okay, what the untruncated result was in this case?

I would have to refer to the batch data.

Do you have that available?

I do.

Would that refresh your memory if you looked at it?

It would, yes.

Okay, do you –-

I –- so I’m sorry, I’m in another room that has a

phone.

Okay.

So I have the two pages –- no, I have the one page

from like the ethanol modification method.

Okay, and what was that untruncated result, then?

-59-

Bates #000799

So on column 1, 0.08479; column 2, 0.08437.

Okay.

So at the time, Utah used the lowest value and trun-

cated to the second decimal place.

Okay.

In this case that’s the same number.

Then in regards to these types of testing, is there

any sort of I guess acceptable range of error in these results?

I would call it more a variation or like uncertainty

of measurement.

Okay, what is the standard variation that’s acceptable

between two different tests?

We apply that to the result. So for this method, like

for this type of testing, a range of plus or minus 5 percent is

appropriate and standard.

Okay, now going to our discussion earlier in regards

to elimination rates or retrograde analysis, you previously

indicated that you did provide some calculations regarding

retrograde analysis in this case; is that correct?

That is correct, yes.

Okay, and walk me through how that’s done, or what

you did, maybe not in general, but let’s talk about this case.

What –- how –- what did you do in this case?

So the standard calculation is to like estimate a

BAC back in time, take a report of the BAC, add it to an

-60-

Bates #000800

elimination rate that was multiplied by the time difference in

hour.

an average elimination rate.

So I did that for fast elimination, slow elimination and

To be clear, too, this number that you came up with

is –- is relatively theoretical because you don’t know all of

the factors that can affect the –- the actual calculation here;

is that correct?

Absolutely.

The only way to get this person’s elimi-

nation rate is to do like a dosing study.

Okay, but the estimated BAC at the time of operation

of the vehicle, in this case how was that calculated?

was –- let’s start with the time.

So what

What was the time frame?

Oh, 1.7 hours.

Okay, and then what do you do with that –- what do

you do with that 1.7 hours?

I multiply it by each elimination rate.

Okay.

Then that number is then added to the reported BAC to

get an estimated BAC back in time.

Back in time, okay. So looking at the slow elimination

rate, what is the slow elimination rate per hour?

0.010.

Okay, and that would give you an estimated BAC at the

time of the stop of what?

0.101.

-61-

Bates #000801

Okay, and then let’s look at the fast elimination.

What is a fast elimination rate per hour?

0.015.

Is that average or is that one fast?

That was the average.

Okay, let’s go to fast.

0.030.

Okay, and that would give you an estimated BAC at the

What’s the fast elimination

rate?

time of stop of what?

0.135.

Okay, and is it –- so irregardless of the elimination

rates, whether fast or slow or average, is it generally accept-

able in the forensic toxicology community that a BAC would be

higher at the –- higher at an earlier time from the blood draw

time; is that –- did I say that correct?

Yes, as long as I make the assumption that alcohol –-

all alcohol has been fully absorbed –-

Okay.

–- and we are in the elimination only, the downturn

of the bell curve.

Okay, so looking at the value, the calculated value

of 0.08, for that value to be still on the bell curve going up,

right, how recently would somebody have needed to have consumed

alcohol?

-62-

Bates #000802

Yeah, but that’s a different (inaudible) as talked

a little earlier, that alcohol can be absorbed within like 20

minutes all the way to like 45 minutes an hour.

Okay, and so in this case we know, according to your

lab results, that the blood/alcohol level was .08, and that was

obtained 1.7 hours after the traffic stop, correct?

Yes.

So with a 1.7 hour window of no drinking, would you

expect that we would still be on the curve going up, or have

we reached the peak and are going down?

curve.

I would assume that we’re on the backside of the

So we are in the elimination phase.

Okay, and why would you assume that?

I have –- I have to assume we’re in that stage for

the calculation.

Sorry, say that again.

I either didn’t hear you or

you broke up a little bit.

Oh, I’m sorry.

You’re good.

I have to assume that we’re in that phase for these

calculations.

Okay, is 1.7 hours time since the last consumption of

alcohol a short or long period of time to rise to the peak of

that bell curve that we’ve been talking about?

Can you maybe rephrase that a little bit.

-63-

Bates #000803

Yeah, I think I’m just trying to say –-

Because sometimes –-

Let’s just –- in a hypothetical scenario, if somebody

were to consume even a large amount of alcohol like moments

before a traffic stop, and now we’ve gone forward in time 1.7

hours, and you have a BAC of .08, what could you –- what does

that tell you?

I think I understand your question.

So like the –-

MR. TAYLOR: Your Honor, I’m going to object to this as

speculation.

absorption, and that’s being couched in this question.

that it’s back to that 702 issue, is the question is eliciting

further, deeper into the issue of things that cannot be deter-

mined, and is therefore unreliable and should not be allowed.

She’s already testified that you can’t calculate

I think

THE COURT: Mr. Taylor, I’m going to overrule that,

as I did previously.

the answer to the question so that I could assess what weight

to give all of this testimony.

I –- quite frankly, I was waiting to hear

So the question that I would ask, and as the finder

of fact, Mr. Spencer, just so you know, because I’m the finder

of fact, if I have a question I can also ask it there.

question that I have is if someone takes a drink right before

we then have a stop of drinking, how does that change what

you’ve just talked about and those calculations?

The

THE WITNESS: Is that –- so those calculations are

-64-

Bates #000804

based on assumption that all alcohol is fully absorbed, drink-

ing stops at some point when someone is in the elimination

phase.

then I would remove like one standard drink from the estimated

BAC, because that ethanol intake may not be fully absorbed.

If someone takes a drink, a shot, a dose of ethanol,

THE COURT: Okay, and how long does it take–- what gap

of no drinking do you have to have to make your calculations

that you’ve submitted today?

THE WITNESS: That depends on the person and how fast

they’re drinking, what they’re drinking.

the assumptions, like either I have to assume all of –- all of

these things if I don’t know what really happened.

Again, we go back to

THE COURT: So your –- let me rephrase.

So you’re

unable to tell me if –- let me put it a different way.

were to have a shot 1.7 hours before you then do this analysis

versus a beer, that would change your analysis?

If you

THE WITNESS: So now that’s a different question, and

that might be where I’m misunderstanding.

So the time of the

blood draw, that’s my recorded BAC.

retrograde calculation that’s when I would take out like

unabsorbed drinks.

If we –- we would –- for

THE COURT: Okay.

MR. TAYLOR: All right.

THE COURT: And by the way, Mr. Taylor, obviously you

can ask all the questions you want based on my questions.

I’m

-65-

Bates #000805

trying to understand the science behind what everyone’s talking

about, and I’m doing that, Mr. Spencer, so I can determine how

much weight to give it if any.

MR. SPENCER: Oh, yeah, I appreciate it.

Yeah, I’m

fine with it.

THE COURT: Thank you, sir.

MR. REICHMAN: At this –-

MR. SPENCER: Yeah, I’m learning, too.

MR. REICHMAN: Me, too.

MR. REICHMAN: At this point I don’t have any further

questions for Ms. Abbott.

THE COURT: All right, then I’m going to turn the time

over to Mr. Taylor.

RECROSS EXAMINATION

Me, too.

BY MR. TAYLOR:

Okay, so I’m going to ask you some questions we

already covered, because it’s kind of a different phase.

so first of all, did you ever weigh Mr. Dean Spencer?

Okay,

I did not and I have not.

Okay, so the 175 pounds you’re basing your calculation

on, that’s information you’ve been given, it’s an assumption

that you’re making about Dean Spencer?

Yes, correct.

Okay, and then we talked about theoretical BAC because

that’s only theoretical because you don’t know Mr. Spencer’s

-66-

Bates #000806

weight, right?

I know the weight that I was given.

Right, but you didn’t weigh him?

Correct.

And you don’t know his BMI?

Correct, yes.

And you don’t know the water content in his body?

Correct, yes.

Okay, now I’m going to talk about this issue of

absorption again.

I think that’s kind of –- a lot of the

question has been about that.

Okay.

You said previously that there is no equation for

absorption rates, right?

Yes, correct.

So the time frame that we’re talking about where

absorption could be happening, you just don’t know, you can’t

calculate that. You said it could happen over 20 to 45 minutes?

Yes, yes, correct.

You don’t know how high the blood/alcohol level went

during that absorption?

So you’re talking about peak ethanol where you kind

of start coming back down?

Yes.

I do not.

My report is the BAC at the time of the

-67-

Bates #000807

blood draw.

Right.

Oh, sure, yeah, yeah.

Even that is subject to some measurement uncertainty

So that’s the only thing you really know?

Of course.

of plus or minus 5 percent?

Yes, correct.

Okay, so the absorption –- sorry, one –- one other

Yeah, exactly.

question on that was when does elimination begin?

Elimination happens the entire time someone is taking

in a dose.

The body’s taking things in and trying to eliminate

like all at once, but at some point drinking stops.

when we start getting –- we’re no longer in the absorption

phase.

at some point someone’s curved down for this duration of time.

Drinking stops.

So that’s

Absorption’s still happening, and then

Okay, but it would be fair to say that even during

absorption elimination is occurring?

Correct, exactly.

Okay.

It doesn’t like hold everything in and then release

it all at once.

This is all happening at the same time.

Okay, so with the information you’ve been given,

you have no way to tell where in time we were at this test –-

sorry, where in time the alcohol was fully absorbed?

Correct, I don’t know when drinking stopped, and then

like how much time had elapsed.

-68-

Bates #000808

Okay, and you also don’t know if he had a full

stomach, which would affect –-

Correct, yeah.

–- the absorption?

Correct.

You also don’t know if he had a medical issue?

Yes, correct.

You also don’t know if he was weighed –- or you also

don’t –- you didn’t weigh him?

I did not, correct.

Give me just a brief moment.

Now, I see on your –-

this is changing gears a bit.

I see on your CV that you have

written papers about stability of blood over time.

(Inaudible), yes.

I believe that you’ve stated that the blood that’s

stored properly is extremely stable over time?

Yes, correct.

Even four to seven years after it’s taken?

Yep.

Okay, and was this –-

After –-

Go ahead.

No, no, I’m –- like even after like the tube was open

and then like retested from that same tube.

It’s stable even after that?

-69-

Bates #000809

Yes, correct.

MR. TAYLOR: All right, I have no further questions.

MR. REICHMAN: No further questions.

THE COURT: All right, may this witness be excused?

MR. TAYLOR: Yeah.

THE COURT: Ms. Abbott, thank you very much for being

here today, and your testimony has concluded.

You are welcome

to remain.

It is entirely at

your discretion.

You are also welcome to log off.

THE WITNESS: Thank you very much.

THE COURT: Thank you.

THE WITNESS: You as well.

THE COURT: Mr. Reichman.

MR. REICHMAN: Judge, if –-

MR. TAYLOR: Your Honor, if I could just make a brief

Have a good day.

Thank you.

comment to my –- my expert just so he knows what to expect.

THE COURT: Okay, great.

Go ahead.

MR. TAYLOR: Yeah, Mr. Djackus, if you’d just hang

tight for a few minutes and then we can get to your testimony.

It should be pretty quickly.

MR. REICHMAN: A couple minutes.

MR. TAYLOR: Okay.

MR. REICHMAN: Yeah, really quick.

MR. TAYLOR: Thanks.

THE COURT: Thank you, Mr. Taylor.

Mr. Reichman.

-70-

Bates #000810

MR. TAYLOR: Oh, he was trying to say something.

Sorry.

THE COURT: Let me get him un-muted.

THE WITNESS: Am I going to be able to see anybody.

Mr. Djackus –-

don’t see anybody but myself.

THE COURT: The only person that you would be able to

see is if I did this, and you’d get to stare at you, which

let’s be honest, not a lot to look at there.

THE WITNESS: Okay.

myself, then.

All right, well, I’ll talk to

That’s fine.

THE COURT: All right, I’m sorry, we are in a –- just

to give you a head’s up in terms of why this is this way, we’re

in a little bit of an older courtroom and this is the best

technology we could put together.

you would want to know.

THE WITNESS: Okay.

There’s more duct tape than

Sure, sure.

Sounds good.

Thank

you.

THE COURT: All right, thank you.

Mr. Reichman.

MR. REICHMAN: Your Honor, I don’t have any further

witnesses at this time.

I do have a motion, and that motion

would be to amend the current information that is on file with

the Court.

I believe I can do so under the rules.

The only amendment to that information is just to

account for the change in law that occurred after this case

was filed.

The law at the time that this case was –- occurred,

-71-

Bates #000811

the legal limit for alcohol was .08.

When this case was at

one point dismissed without prejudice, refiled.

refiled the law had changed and the blood/alcohol level was

reduced to .05.

When it was

That is not the case in the –- you know, that’s not

the claim that the State is making in this case.

make a motion to amend the Information to have it reflect what

the law was at the time the case occurred, which would be the

level of .08.

THE COURT: Mr. Taylor, any objection to that amend-

ment.

MR. TAYLOR: No, let me just explain it to Mr. Spencer.

THE COURT: I’m actually happy to do that, if you’d

So I would

like.

MR. SPENCER: Sure.

THE COURT: Mr. Spencer.

MR. SPENCER: Yeah.

THE COURT: Okay, so there’s –- I don’t know if you’re

aware of sort of how things get filed in Court.

by what’s called a “Criminal Information” –-

MR. SPENCER: Yeah.

THE COURT: –- or you can get a ticket.

MR. SPENCER: Yeah.

THE COURT: Either way.

MR. SPENCER: Yeah.

They’re filed

-72-

Bates #000812

THE COURT: In your Information there was essentially

a typographical error.

They charged you with being DUI at .05.

MR. SPENCER: Okay.

THE COURT: You’re not required to –- you don’t fall

under that law, sir.

MR. SPENCER: Yeah, I was aware of that, but I didn’t

know it was filed under that.

THE COURT: Okay, and so what happened is just what

Mr. Reichman indicated.

MR. SPENCER: Yeah, okay.

THE COURT: There was a very long gap between when

that law was passed and the effective date.

MR. SPENCER: Yeah, yeah, I was aware of that.

wasn’t effective ‘til like January or something.

THE COURT: It wasn’t.

MR. SPENCER: Yeah.

THE COURT: So what Mr. Reichman is asking, is he is

asking to allow me to change that to properly reflect the .08.

MR. SPENCER: Yeah, I’ve got no problem with that.

THE COURT: Okay, great, and I’m going to note, sir,

just so that we’re clear, that Rule 4 of the Criminal Procedure

Rules –-

MR. SPENCER: Yeah.

THE COURT: –- allow me to do that as long as it’s of

no detriment to you.

-73-

Bates #000813

MR. SPENCER: Yeah.

THE COURT: And in this case it actually benefits you.

MR. SPENCER: Oh, yeah.

THE COURT: So I’m going to allow that amendment,

okay?

MR. SPENCER: Thank you.

THE COURT: You’re very welcome.

Mr. Taylor, anything

else on that issue?

MR. SPENCER: No, no.

THE COURT: All right, Mr. –-

MR. REICHMAN: With that, then, we rest, your Honor.

THE COURT: Okay, so we’ve got that corrected Inform-

ation, and then Mr. Taylor, does the defense intend to present

any witnesses?

MR. TAYLOR: Yes.

THE COURT: Call your first witness.

MR. TAYLOR: Yes, I would call Timothy DJackus.

THE COURT: Mr. Djackus, good morning.

I am going to swear you in.

I’m Judge

Porter.

Raise your right hand.

Do you swear to tell the truth, the whole truth and nothing but

the truth in this morning’s proceeding?

THE WITNESS: Yes.

THE COURT: Thank you very much.

Your witness, Mr. Taylor.

///

-74-

Bates #000814

TIMOTHY DJACKUS,

having been first duly sworn,

testifies as follows:

DIRECT EXAMINATION

BY MR. TAYLOR:

Yes, good morning.

where –- where you’re currently employed.

Laboratories.

as well.

Mr. Djackus, could you tell us

So I am the owner of Rocky Mountain Instrumental

I’m also the –- still the acting director here

Okay, and were you the acting director there in 2020

–- or the –- were you employed there in 2020?

Yes, I was.

Okay, did you receive a blood vial or any evidence in

regards to Mr. Mr. Dean Spencer?

Yes, we received two blood vials from Mr. Spencer.

I’ve got the –- our alcohol report in front of me, if that’s

okay.

If you could just refer that–- if you don’t remember,

say you don’t remember.

Then we can –- then we can go through

a process where you can refresh your recollection on that.

Oh, I do –- I do have it front of me.

Okay, yes.

MR. REICHMAN: Ryan, I’ll –- I’ll stipulate to that

coming in.

-75-

Bates #000815

MR. TAYLOR: Okay, with the stipulation of the State

we would ask to admit which I think would be labeled Defense

Exhibit 3, the video being 2.

MR. REICHMAN: No objection.

THE COURT: So received.

(Exhibit D-3 received into evidence)

BY MR. TAYLOR: Now, is that just a one-page report

that’s with the header of Rocky Mountain Instrumental Labora-

tories with the logo?

That’s correct.

Okay.

Yeah, it’s dated February 19th, 2020 at the bottom

right-hand corner.

Thank you, and so you received that and what did you

do with the blood vials that you received?

So we received –- again, we received two vials.

One

of them was identified as having already been previously open

and tested, and assumed to be so by the State of Utah.

one was just stored.

sealed, we kept that in our laboratory fridge until it was to

be tested for blood/alcohol content.

So that

The other vial, the vial that was still

Okay, and did you do that test?

I personally did not run the analysis, no

Okay, are you aware of whether or not it was tested?

Yes, because I was the one who reviewed the batch

-76-

Bates #000816

data and signed off on the report.

Okay, and what was the results of that test?

We obtained a blood/alcohol content of 0.079 grams of

ethanol per 100 milliliters of blood.

Was your –- was Rocky Mountain Laboratories at the

time certified to test blood?

Yeah, so we held an accreditation through our State

Department of Health, the Colorado State Department of Health

and Environment to analyze blood and urine for alcohol and

other drugs.

MR. TAYLOR: Okay, no further questions.

THE COURT: Mr. Reichman, cross exam?

MR. REICHMAN: Yes, just briefly.

CROSS EXAMINATION

BY MR. REICHMAN:

Mr. Djackus, right?

Djackus.

Djackus, sorry, Mr. Djackus, thank you for being

Uh-huh, no problem.

You and I spoke what, roughly about ten days ago; is

that correct?

Yeah, I don’t recall the exact day, but –-

I don’t either.

–- somewhere in that time frame, yes.

Am I saying that right?

here.

Yeah.

-77-

Bates #000817

I don’t recall it either, so just –- but sometime –-

sometime in the relatively recent history, correct?

Yes, that –- I would agree, yes.

Okay, so the result of .079, and then did you hear

the testimony just moments ago from Ms. Abbott as well?

Yes, I did.

Okay, and so you heard that the Utah State Crime Lab

tested the blood and came up with the result of .08; is that

correct?

That’s right.

I believe you had indicated to me that that .079

result, statistically speaking, confirms the .08 result; is

that correct?

Yes, it’s statistically not a significant difference.

Okay, and your lab, you indicated, is accredited in

the State of Colorado; is that correct?

MR. REICHMAN: Okay, and I don’t have any further

That’s right.

questions, your Honor.

THE COURT: Any followup, Mr. Taylor?

MR. TAYLOR: Yes, briefly.

REDIRECT EXAMINATION

BY MR. TAYLOR:

If –- when you say that statistically they’re the

same, that is to say that it could be –- the blood –- I think

-78-

Bates #000818

the State had just phrased it as it confirmed the .08 result;

is that true?

Did it confirm that result?

Well, it confirms that within their measurement

uncertainty is.

Okay, so the –-

Yes.

So do you believe that your test, .7 –- .079 is

accurate?

Yes, within –- within our associated measurement

uncertainty, which would for this resolve would be about plus

or minus 0.004.

Okay, so the calculation for the blood that you have

had tested and results that you’ve analyzed, .7 –- .079 could

be .004 lower than that or .004 higher than that?

That’s right.

MR. TAYLOR: Okay, no further questions.

THE WITNESS: Yeah, so what is dating is if that’s the

true BAC, the true blood/alcohol in that vial is somewhere

between 0.075 and 0.083.

MR. TAYLOR: Okay, thank you.

THE COURT: Mr. Reichman, anything further?

MR. REICHMAN: No, your Honor.

THE COURT: Anything further, Mr. Taylor?

MR. TAYLOR: No.

THE COURT: May Mr. Djackus be excused?

-79-

Bates #000819

MR. TAYLOR: Yes.

THE COURT: Mr. Djackus, thank you for being here

today.

You’re welcome to disconnect.

to remain.

You are also welcome

THE WITNESS: Okay, thank you.

THE COURT: Thank you.

Give me one second, gentlemen.

Okay, Mr. Djackus has elected to not remain.

As such I’m going

to go ahead and shut down the Webex and the recording.

MR. REICHMAN: Thank you.

(Webex operator speaking)

MR. TAYLOR: I be you’re sick of hearing that.

THE COURT: Interestingly, Mr. Taylor, it only does

that when we have to do that particular –- like for voir dire

it will do that, but when we do all of our regular hearings,

so Mr. Spencer, when you call in it doesn’t do that.

just hear it from my computer up here.

recording and I aren’t as good of friends as one might think.

I can

So it’s not –- that

All right, Mr. Taylor, any other witnesses?

MR. TAYLOR: We’ve discussed Mr. Spencer’s right to

testify.

correct?

I believe he’s electing to remain silent; is that

MR. SPENCER: Yeah, I don’t have anything to say.

THE COURT: All right, Mr. Spencer –-

MR. TAYLOR: So, yes, that –- we do.

THE COURT: Okay, Mr. Spencer, I’m going to note that

Defense rests.

-80-

Bates #000820

you were inquired by your lawyer in open Court whether or not

you want to testify.

Is it your desire to remain silent today?

MR. SPENCER: Yeah, they pretty much assumed it, so –-

THE COURT: Okay, well, I just wanted to make sure

that you had a very express invitation to testify if you wanted

after advice of Counsel.

MR. SPENCER: Well, I would just do –-

MR. TAYLOR: It’s just about testifying about what

happened.

(Counsel conferring with defendant off the record)

MR. TAYLOR: Your Honor, may we have a brief recess?

THE COURT: Please step outside. We’re off the record.

(Recess taken)

THE COURT: We’re back on the record, Mr. Taylor.

You’ve taken an opportunity to speak to Mr. Spencer off the

record outside the presence of any other party.

election as to testifying today?

What is his

MR. TAYLOR: Yeah, he’s going to elect to remain

silent, and the defense rests.

THE COURT: Okay, thank you, Mr. Spencer.

make sure that you had a clear and appropriate time to make

that decision, okay?

MR. SPENCER: Yeah.

THE COURT: All right, thank you.

MR. SPENCER: Thank you.

I wanted to

-81-

Bates #000821

THE COURT: So I’m going to invite the State to make

closing argument.

MR. REICHMAN: Judge, just briefly.

The Court’s heard

all the evidence.

The evidence from the Utah State Crime Lab.

I don’t –- I don’t think there –- well, let me back up, sorry.

There’s I’m guessing no argument that Mr. Spencer was driving

the vehicle.

pulled him over and Mr. Spencer was the only person in that

vehicle.

Deputy Stilson state –- or testified that he

We don’t have any indication of inability to operate

a motor vehicle, due to Mr. Spencer’s refusal to take the field

sobriety tests.

strong odor of alcohol.

That also goes to Count II.

II or is that Count III?

Deputy Stilson did testify that he smelled the

There were open containers in the car.

As to –- am I right; is that Count

That’s Count II.

As to the –- Mr. Spencer’s driving record, Deputy

Stilson also testified, and the printout from the Drivers

License Division indicated that his license had been denied.

So that’s Count III.

we do not have a driving pattern, we do not have any other

indication other than what Deputy Stilson observed as to

Mr. Spencer’s ability to operate the motor vehicle.

So we’re looking obviously at just Count

The State’s position is that this is a per se DUI because

What we do have is the toxicology reports indicating

from the Utah State Crime Lab that his blood was a .08, and

-82-

Bates #000822

that again the untruncated value was a .084, from Ms. Abbott’s

testimony.

is the one that is accredited in the State of Utah to come up

with that result.

State’s argument is that the Utah State Crime Lab

Mr. Djackus testified and also indicated that the

Utah State Crime Lab’s results were statistically identical

to the results taking into account the reasonable rate of –- I

guess “error” is not the right word, but variation in testing,

which is also what Ms. Abbott testified; and I would –- I think

the evidence would allow the Court to find that Mr. Spencer was

in control of the motor vehicle, and that his blood/alcohol

rate at the time was over or at or over a .08.

THE COURT: Thank you, Mr. Reichman.

Mr. Taylor.

MR. TAYLOR: Your Honor, I think the evidence of

Counts II and III I’m not going to really address.

Count I.

issue.

It’s not about whether Dean Spencer should have been driving.

It’s about whether or not the State has proved beyond a reason-

able doubt that he was in physical control of the car, and at

the same time his blood/alcohol level was about .08, according

to the law that was applicable at the time.

So just

This is obviously not a case –- it’s a very technical

Like the State said, it’s not about driving pattern.

The State just has failed to do that.

I think the

assumption of elimination that everything had been absorbed is

clearly at question.

There was alcohol in the car.

Officer

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Stilson said that there was a mug with alcohol that was prob-

ably mixed with something that was probably not –- probably not

beer.

mixed –- likely mixed with soda.

that was open.

You don’t usually mix beer with soda.

He said it was

There was also a can of beer

Therefore the facts, as the evidence as been presented

by the State, cannot show that elimination–- that no absorption

was happening. In fact, it was likely that absorption was still

happening. There’s no calculation –- we’ve heard the testimony

of the experts –- or of the State’s expert that there’s no

calculation for absorption rates.

factors.

There’s too many unknown

I also would argue that the calculation for the

elimination was based on too many unknown factors to be helpful

at all for the Court to decide.

so she had the weight at 175.

testimony, from a 1995 driver’s license.

dated weight.

the time.

–- well, unknowable number, I guess, because I can’t say it’s

incorrect.

In fact, the weight, even –That was based, according to

Obviously a very

So we don’t actually know what Dean weighed at

So that is another unknown, and an incorrect number

THE COURT: Mr. Taylor, let me offer a bit of assis-

tance.

Now that all of the evidence is concluded, I found the

discussion about those rates very minimally helpful, if at all.

So, quite frankly, I agree with you, sir, to the extent that

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Bates #000824

assists in your argument.

MR. TAYLOR: Okay.

THE COURT: I do not believe now that all of the

evidence is in, based on hearing from both of those witnesses,

that that discussion particularly weighs into the decision.

while I think it was admissible, I think it carries very little

weight.

MR. TAYLOR: Okay, the thing that we’re left with

without that is a test that is right on the line; .08 by the

State, with uncertainty, and lower than the average by a second

test.

wasn’t any loss of blood/alcohol level while –- while the case

was continuing to go on. It had been dismissed, and then Covid,

and then it was retested at a lower level. There’s no reason to

believe that that’s incorrect either.

We had testimony that it was stable over time, so there

I think that while the elimination rate is not very

helpful, there is a –- just a common sense factor that it is

going to be eliminated.

the State can’t reach its burden to prove beyond a reasonable

doubt that he was over the limit at the time he was in the car

because of the absorption.

I think my main point here is that

We don’t know where that curve was.

We don’t know

if it was higher at the time he was in the car, or if it went

higher after and then started going down.

of that, and the State couldn’t fill in those holes.

We don’t know any

She said

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Bates #000825

there’s no calculation for that either.

So there’s just no way

that they can reach beyond a reasonable doubt in this circum-

stance.

I think the fact that the open containers were in the

car, which is one of the ele –- one of the crimes goes against

the State’s ability to prove beyond a reasonable doubt that the

DUI occurred.

Also, the State did fail to present any evidence on

prior convictions, so even if the Court finds that –- beyond

a reasonable doubt that he was .08 at the time when he was in

possession of the car, the Court can’t convict on a third-

degree felony; it would have to be a Class A misdemeanor –- or

a Class B misdemeanor.

THE COURT: Mr. Reichman, final comments?

MR. REICHMAN: Just briefly, Judge, and I will agree,

and I’m sorry for leading everybody down the rabbit hole of

the retrograde analysis or elimination rates or whatever we’re

going to call it, but in this situation it was not entirely

helpful.

That being said, I think that there is some common

sense evidence or conclusions that can be made based on that

discussion in that there was an hour –- 1.7 hours between the

time of the traffic stop and between the blood draw.

Mr. Spencer was drinking heavily right before the traffic stop,

the fact that his BAC may still have been on the rise, but then

Whether

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Bates #000826

tested 1.7 hours later by the State Crime Lab and was at a .08,

further shows that, again, the State Legislature has indicated

that .08 is the limit, and the State’s Crime Lab found that .08

was what his blood/alcohol level was.

Court even needs to go into the retrograde analysis to find

Mr. Spencer guilty of the DUI.

So I don’t think the

As to the prior convictions, the defense did file a

motion to bifurcate between the trial –- I know we’re in a

bench trial so it’s a little bit different, but the issue of

the prior convictions long ago, the State was going to present

that evidence, as we usually do, after the determination of

guilt, if there is such a determination, on that.

Also, I believe it is very sufficiently in the Court’s

record of the prior convictions considering the last year and a

half of litigation over those prior convictions.

Nothing else.

THE COURT: I –- this is somewhat unusual, but I’m

going to ask Mr. Taylor a question.

to bifurcate?

Is –- was there a motion

MR. TAYLOR: There was before a previous trial with

the jury.

trial was stricken. The motion was never granted, never argued,

and it was before, but yes, there was previously.

So that would be the only reason, and then that

THE COURT: Okay, Mr. Spencer, it’s always a little

interesting when you’re in my Court, sir.

MR. SPENCER: Well, thank you.

I like to be noticed.

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Bates #000827

THE COURT: All right.

MR. SPENCER: Not the way I should, though.

THE COURT: All right, well, let’s you and I have a

discussion, okay?

All right, I’ve been here with this case

since I took the bench, and it was pending sometime before I

ever got here.

thank you for your active participation in this process.

You’ve been incredibly patient, and I want to

I know sometimes it’s been incredibly frustrating

to you.

I know that even when you’ve been frustrated, you’ve

always done a couple of things.

Court.

and at the end of the day you’ve, for the most part, behaved

appropriately in Court, and so I really appreciate that, okay?

You’ve always shown up to

You’ve always made sure to keep Mr. Taylor up to date,

Let me tell you what I’m –- what I’m deciding, all

right?

You have three charges today, and there’s been no

objection to the evidence of open container, a C misdemeanor,

and that actually is all I see as Count II.

Amended Information somewhere?

about a driver’s license.

So is there an

Because there was discussion

COURT CLERK: I only have two counts.

MR. REICHMAN: Oh, sorry, that’s fine with the State.

THE COURT: Okay, so two –-

MR. REICHMAN: There was, I think, on a previous one,

so that’s what it is.

THE COURT: So Mr. Spencer, you only have two charges,

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Bates #000828

not three.

There’s been no debate about the open container,

in terms of argument from your defense Counsel.

testimony from the officer that there was a container that had

a beverage in it, and that it smelled of alcohol, and I find

that evidence to be reliable, and I’m going to find you guilty

of having an open container in that vehicle, okay?

I’ve heard

Now –-

COURT CLERK: Judge.

THE COURT: Yes.

COURT CLERK: I’m sorry, the count reads drinking

alcohol in the vehicle, not open container.

THE COURT: No, the Information I have pulled up is

open container.

I have a copy of the Information.

So for having an open container in the vehicle I’m

going to find you guilty for that. I believe that the testimony

showed that there was an alcoholic beverage that was able to be

accessed in that vehicle at that time when you were stopped.

Let’s talk about the DUI.

I’m going to deal with

the enhancement after we have a talk about the DUI, okay?

case really boils down to some math, and let me tell you what

I mean by that.

What–- and there is no evidence that you were driving unsafely.

This

No one’s alleging you were driving unsafely.

Thankfully in today’s day and age a lot of times we

have video, and we got –- watched a video.

You weren’t driving

unsafely. You did roll through a stop sign, so you got stopped.

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Bates #000829

That means that we’re talking about what’s called a per se DUI.

That means that even if you can operate a vehicle safely, the

Utah State Legislature has indicated that above a certain

level, in this case .08, that by definition you can’t operate

safely.

all of us safe out on the roads.

We do that to try and protect the community and keep

Now, we have one blood test that says .08, and one

blood test that said .079.

by two different labs, and they were, and I quote the expert

that your lawyer called, “Not statistically significantly

different.”

Those were done at different times

There is an error of measurement of .004.

So 4000's

that is a plus or minus on either side.

is that those blood tests essentially confirm each other, and

that based on the legislative mandate that I am to follow, is

that I do have in fact a blood test that shows .08.

given to us by the Utah State Crime Lab.

excuse me, was not statistically different, and both experts

agree with each other as to that essentially.

What that does tell me

It was

The .79 –- .079,

They also discussed a standard rate of variability.

I don’t want to say error because it’s not error, and they were

very clear about that, both of these experts.

is that no test is 100 percent perfect.

the Legislature tells me to act on, which is that I have a .08,

and I have to presume that that is with our current best tech-

What that means

I can only act on what

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Bates #000830

nology, and our current best technology today based on both

experts is that you were in fact at that per se DUI level.

So I do find you guilty of the DUI.

However, I am

not making a finding today whether it’s a Class B or whether

it’s a felony, because we now have a legal issue that has come

up.

the State as to prior convictions; and any argument or any

motions that have been filed previously are not relevant to

that consideration.

As of right now there has been no evidence presented by

That is the burden of the State at trial.

–- you and I had a motion hearing here before where you and I

met in person.

That doesn’t affect your case for today.

That doesn’t matter.

That doesn’t come in.

Now, Mr. Reichman indicted that he was under the

impression that this matter would be bifurcated.

appears to be of a different impression.

couple of ways that we can go about this.

So nothing

Mr. Taylor

Now, there are a

I am happy to invite Counsel and you, if you’d like

to participate to go see if you all can figure out how you’d

like to proceed as to that, or we can brief it up, because we

have a very unique situation in that we have lawyers who have

understood procedure two different ways, and I need to have

them educate me on how they’d like to go forward and if we

need to have briefing and argument on it so that I can make

my decision as to the degree of offense; does that make sense?

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Bates #000831

MR. SPENCER: Yes.

THE COURT: Okay, so my question to you both is would

you like some time to see if you can get that worked out, or

would you like to simply brief it?

MR. REICHMAN: I’d rather work it out.

MR. TAYLOR: Yeah, I would as well.

THE COURT: Okay, then what I’m going to do is I’m

going to step off the bench, Mr. Spencer, and I’m going to

allow these attorneys to go take a minute and see it’s –- you

know what, they’ve got a name for it.

confer.”

It’s called “meet and

MR. SPENCER: Yeah.

THE COURT: And I’m going to let them do a meet and

confer so that you all can tell me how I can best help you,

okay?

MR. SPENCER: Okay.

THE COURT: All right, thank you, sir.

MR. SPENCER: Can I go to the restroom now?

THE COURT: Please do.

You just –- just don’t leave

the third floor, so we know where to grab you, okay?

MR. SPENCER: Oh, I won’t leave.

THE COURT: All right, well, no, I just mean I don’t

want to have –- I don’t want to have you waiting.

(Recess taken)

THE COURT: Mr. Taylor, Mr. Reichman, have you been

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Bates #000832

able to resolve the issue of the enhancements?

MR. TAYLOR: Yes, I believe Mr. Reichman is just going

to proceed without the priors, and not require any further

briefing.

THE COURT: Mr. Reichman, is that correct from the

State’s perspective?

MR. REICHMAN: That’s correct, your Honor.

THE COURT: Then what I’m going to do, Mr. Spencer, as

I’ve indicated, I do find you guilty of the DUI.

to show as a Class B misdemeanor, okay?

sentenced today, sir?

That is going

Would you like to be

MR. SPENCER: Well, yeah.

THE COURT: Okay, a couple of things.

You and I have

talked a little bit today as we’ve gone through, because we’ve

been working together a long time now.

you to 180 days of jail.

that jail, and I’m giving you credit for the time you’ve

served.

I am going to sentence

I’m suspending all but two days of

The reason I’m giving you credit is that I am aware,

and you know that I have been aware of your American Fork City

matters where you were held in custody and it exceeded the

amount of time that you were appropriately to be held, which

means that you had cus–- you had custodial time that you didn’t

have credit for, and that was while this case was pending.

That means I am allowed legally to give you credit for that

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Bates #000833

time, and I do not show that it is in the public interest to

return you to custody.

I’m not going to do that, sir, okay?

Additionally, I am not placing you on probation.

am not placing you on probation today because you have effect-

ively been on probation with my Court since I became a Judge.

I’ve seen you at least every three to four months for the

last two-and-a-half years, and as far as I know you’ve had no

convictions.

to appear, and I’ve had you following through with each and

everything that we’ve asked you to do in this case.

I don’t believe I’ve ever had you have a failure

That is exactly what probation is for.

I find for

the record you’ve already done it, okay?

followed through with everything I could have asked of you,

okay?

need to impose it.

it.

You’ve already

Additionally there is a mandatory fine for a DUI.

It is $1460, but I am allowed to suspend

Based on the totality of the circumstances here I

am going to suspend that find, again because we are about year

five of this prosecution, and in at least a ma –- at least a

major way, through no fault of anyone’s you were caught up in

the Covid backlog.

set for trial during Covid, and it has taken this long to

essentially get us out of that.

Your case happened pre-Covid, you were

Additionally, personally for you, I’m going to

reiterate what I just said, which is that you have shown up

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to Court and shown me that you are not continuing to violate

the law.

that’s been for probably over any probationary period that you

would have had on a B misdemeanor.

That you have had no further difficulties, and that

So I am simply going to suspend and credit the fine.

I do need to impose it, but I’m going to credit it.

You don’t

owe any money, okay?

driving with an open container.

next 30 days, and as soon as you do that the case is closed.

You are going to owe a $100 fine for

You need to pay that in the

MR. SPENCER: Fair enough.

THE COURT: Okay, Mr. Taylor, did I miss anything that

was mandatory that I needed to put on the record?

MR. TAYLOR: No, and that just included both the two

class –- or the two charges, right?

THE COURT: Okay, so what happens with that $100,

Mr. Spencer, I didn’t even suspend any jail time here at all

on that.

just pay the money in 30 days, and if you don’t pay it, it goes

to State debt.

it, please.

It simply is what’s called a “time pay.”

You have to

It would be a lot easier if you could just pay

MR. SPENCER: Yeah.

THE COURT: I don’t want you to have to pay more money

with the penalties and stuff if it goes to LSDC.

from the State’s perspective anything that I’ve missed?

Mr. Reichman,

MR. REICHMAN: No, your Honor.

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Bates #000835

THE COURT: All right, then I believe we’ve taken care

of everything on the record, Mr. Spencer.

thing for you?

Have I missed any-

MR. SPENCER: What’s that?

THE COURT: Anything else I’ve missed from your

perspective; anything you wanted to tell me?

MR. SPENCER: Oh, just, you know, when we were going

over those priors, you know, we talked about me trying to

appeal them.

THE COURT: Yeah.

MR. SPENCER: And I’ve tried that.

There was a lot

of stuff that went on in the Courts where I wasn’t getting any

paperwork because I was locked up, and so throughout the years,

you know, but not in this Court, but I’ve been wronged by my

record, or this –- none of this would have happened.

This caused from years ago to get my records all

messed up with these case –- case numbers, you know.

why I got charged, you know on my record of like 65 pages long,

you know, with 31 incidences that when you read those guilty

verdicts there’s only been about 10 of them that they found me

guilty on.

That’s

So there was 5 felony, you know, arrests, supposedly,

but zero convictions, because of all these multiple, multiple

cases of these DUI –- supposedly DUI’s that was –- anyway they

was just changing case numbers because they get dismissed, and

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Bates #000836

you know, it’s going back to even 2007, where I got picked up.

Evidently the police knew me at Deseret Industries and followed

me out of there and they give me a DUI supposedly on an alcohol

restricted person.

know, they took the blood there, but there was no –- nothing

on the dipstick.

Then when we got to Court and they, you

So they had to dismiss the charges, but they had

charged me with some other stuff, and wanted me to do six

months in prison –- or in jail, and I ended up getting those

appealed and getting that knocked –- but see, all those arrests

never come off.

THE COURT: Yeah, they show up there.

MR. SPENCER: The rest.

So there’s no way.

So one

of my –- every time I get questioned and my name comes up, man,

there’s less and less and less of these arrests.

THE COURT: May I make a suggestion.

MR. SPENCER: It’s like re-arrests, though.

THE COURT: Would it be okay if I made a suggestion.

Mr. Taylor has some resources that he can advise you about.

can’t give advice.

MR. SPENCER: Yeah.

THE COURT: That’s not my job here on the bench, okay?

But you and Mr. Taylor seem to get along pretty well, and

Mr. Taylor can advise you on ways you might work on getting

that cleaned up now, okay?

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Bates #000837

MR. SPENCER: I’ve wore out Mr. Taylor, and all of his

staff and clerk, but anyway I do appreciate all the help, you

know.

you’ve been inside of it, you have no idea, you know, and what

I feel sorry for most of these people that get caught up with

it.

to go away.

I know how it is.

It’s an overburdened system.

All they want to do is make a deal, but it’s never going

You see them coming back in.

Until

They get put on

probation and parole, and you know, they get dogged.

can’t –- they can’t get a job.

they’ve got to have an immediate place to stay and a vehicle,

you know, and I’ve seen it over and over and over, and it’s

sad.

They

They’ve got to see the ––

I don’t know –- I don’t know how to fix it.

THE COURT: Well, here’s the good news.

You fixed

it for yourself, and what I’ve seen from you is exactly what I

would have wanted in a probation.

been in front of me, showing up, participating, not getting any

new charges, and going out and living your life.

I’ve had a gentleman that’s

There’s been a lot of frustration that you’ve had

in all of these things, but you’ve managed to work yourself

through it.

to work yourself through it, and I sure am happy to have been

helping you, sir.

You’re actually a very excellent example of how

MR. SPENCER: Yeah, my life’s about over with now.

THE COURT: Well, I don’t want to –-

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MR. SPENCER: I’m 65 years old.

THE COURT: –- I don’t want to hear that at all.

want you to go out and continue to do the things you’ve been

doing, okay?

MR. SPENCER: All right, thank you.

THE COURT: You’re very welcome.

Okay, Mr. Taylor,

Mr. Reichman, anything else?

MR. TAYLOR: No, your Honor.

MR. REICHMAN: No, thank you.

THE COURT: All right, you all have a really good day.

Thank you for your time.

MR. SPENCER: You, too.

Thanks.

(Trial concluded)

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Bates #000840

APPENDIX B

Opinion: State v. Spencer, 2025 UT App 66

2025 UT App 66

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

DEAN MARSHALL SPENCER,

Appellant.

Opinion

No. 20230863-CA

Filed May 8, 2025

Fourth District Court, American Fork Department

The Honorable Denise Porter

No. 191101244

Jennifer L. Foresta, Attorney for Appellant

Derek E. Brown and Alexandra Herlong,

Attorneys for Appellee

JUDGE AMY J. OLIVER authored this Opinion, in which

JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

OLIVER, Judge:

¶1

During a traffic stop, a Utah County Sheriff’s deputy

(Deputy) smelled a strong odor of alcohol coming from Dean

Marshall Spencer’s vehicle. Deputy arrested Spencer after finding

open containers of alcohol in Spencer’s vehicle and observing

signs of impairment. When results from a blood draw indicated

his blood alcohol concentration was above the legal limit, Spencer

was charged with driving under the influence of alcohol (DUI).

Spencer had an independent laboratory retest his blood sample

before trial, and the laboratory results placed Spencer’s blood

alcohol concentration below the legal limit. Despite presenting the

results of the independent laboratory test at his bench trial,

Spencer was convicted of DUI. Spencer appeals, asserting there

State v. Spencer

was insufficient evidence to prove beyond a reasonable doubt that

he was guilty of DUI. Because Spencer has not met his burden on

appeal of demonstrating there was insufficient evidence to

support his conviction for DUI, we affirm.

BACKGROUND 1

The Traffic Stop

¶2

While driving one morning in August 2018, Spencer made

a right-hand turn when he had a red light at an intersection that

had a posted sign prohibiting right turns when the traffic light

was red. Deputy observed Spencer make the turn and initiated a

traffic stop of Spencer’s vehicle. Spencer pulled over, and Deputy

approached the passenger side of Spencer’s vehicle. When

Spencer rolled down the window, Deputy smelled a strong order

of alcohol coming from the interior. Deputy then asked Spencer

“if he had been drinking [or] had any open containers in the

vehicle,” and in response Spencer shrugged his shoulders.

Deputy informed Spencer that he believed “there was an open

container or freshly spilled alcohol in the car” because the alcohol

odor was so strong. Deputy also noticed that Spencer’s eyelids

appeared to be droopy. After Deputy again asked Spencer if there

was an open container of alcohol in the vehicle and told Spencer

he had “probable cause to search the vehicle,” Spencer responded,

“Well, you’ll have to search.” Deputy then asked Spencer to exit

the vehicle and walk to the back of the car. Spencer complied.

¶3

When Deputy asked Spencer to move to the front of the

vehicle so Deputy could “keep an eye on him” and search the

vehicle, Spencer refused, so Deputy detained him in his patrol

1. “On appeal from a bench trial, we view the evidence in the light

most favorable to the district court’s findings.” State v. Jok, 2021

UT 35, ¶ 3 n.3, 493 P.3d 665.

20230863-CA

2025 UT App 66

State v. Spencer

vehicle. Deputy then searched Spencer’s vehicle and found an

open beer can and a large drink mug that smelled of alcohol,

which Deputy believed contained a mixture of alcohol and soda.

Deputy also found several empty beer cans and a half-empty

bottle of vodka in the trunk of Spencer’s car.

¶4

After searching the vehicle, Deputy went to his patrol car,

informed Spencer of what he found, and “requested that he

submit to field sobriety tests.” Spencer did not respond to

Deputy’s request. Deputy then arrested Spencer because he

believed he “was impaired” and “not capable of safely driving a

motor vehicle.” Deputy transported Spencer to the Utah County

Jail.

¶5

At the jail, Deputy asked Spencer to submit to a blood

draw, but Spencer did not respond to his request, so Deputy

requested a warrant for the blood draw. The warrant was

approved, and Spencer’s blood was drawn shortly after. The

blood sample was sent to the Utah Public Health Laboratories (the

State Lab). A toxicologist (State Toxicologist) at the State Lab

analyzed the blood on August 23, 2018, and got two results: .08479

and .08437 grams of ethanol per 100 milliliters of blood. The State

Lab’s accreditation required that formal results of blood alcohol

tests be reported to the hundredths place without rounding, so

State Toxicologist formally reported a result of .08 grams of

ethanol per 100 milliliters of blood.

¶6

Spencer had his blood sent to an accredited forensic

laboratory in Colorado (the Colorado Lab), which tested the blood

in February 2020. The Colorado Lab’s test produced results of .079

grams of ethanol per 100 milliliters of blood.

The Charges and Bench Trial

¶7

Spencer was later charged with DUI with prior convictions,

a third-degree felony, and an open container in a vehicle, a class

20230863-CA

2025 UT App 66

State v. Spencer

C misdemeanor. 2 After many delays due to the COVID-19

pandemic, Spencer’s case proceeded to a bench trial in August

2023.

¶8

The State called two witnesses, Deputy and State

Toxicologist, during its case in chief. Deputy testified about the

traffic stop and subsequent arrest of Spencer as described above.

State Toxicologist testified to the results of the test of Spencer’s

blood sample as described above. The final toxicology report from

the State Lab was admitted as an exhibit. State Toxicologist also

testified that for blood alcohol tests like the one she administered

on Spencer’s blood sample, there is typically a variation of plus or

minus 5% between different results.

¶9

Spencer called the Colorado Lab’s owner and acting

director (Director) in his case in chief. Director testified about the

results of the blood test as described above. Director also testified

that there is not a statistically significant difference between

results of .079 and .08 grams of ethanol per 100 milliliters of blood.

Spencer also had the report of the blood test done by the Colorado

Lab admitted as an exhibit. When asked if the Colorado Lab’s

result confirmed the result of the State Lab, Director testified that

it confirmed the State’s test result “within their measurement [of]

uncertainty.”

¶10 During closing arguments, the State argued that Spencer

was guilty of a per se DUI because of the State Lab blood alcohol

result of .08, and because Director testified that the difference

2. Because the traffic stop and subsequent arrest occurred in

August 2018 before the lower threshold for intoxication went into

effect on December 30, 2018, see Act of Mar. 8, 2017, ch. 283, § 3,

2017 Utah Laws 1342, 1343, .08 grams of ethanol per 100 milliliters

of blood is the applicable intoxication threshold for a per se DUI

in this case.

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2025 UT App 66

State v. Spencer

between the results of the State Lab and Colorado Lab tests were

statistically identical.

¶11 Defense counsel argued the State did not prove beyond a

reasonable doubt that Spencer’s blood alcohol concentration was

.08 or above because two tests were performed on the same blood

sample, and one produced a result above the legal limit and one

below. Defense counsel also argued that because the State did not

present any evidence that Spencer had prior convictions, even if

the court did find beyond a reasonable doubt that Spencer’s blood

alcohol concentration was .08, the court could convict only on a

class B misdemeanor rather than a third-degree felony.

¶12 The district court, agreeing with Spencer’s argument

regarding prior convictions, found Spencer guilty of DUI, a class

B misdemeanor, and having an open container in a vehicle, a class

C misdemeanor. 3 The district court found Spencer guilty of DUI

because the two experts agreed that the difference between the

test results was not statistically significant, and confirmed the

State Lab’s result of .08, which was sufficient to convict Spencer

of a per se DUI. The district court further stated that “no test is 100

percent perfect,” and that it “can only act on what the Legislature

tells [it] to act on, which is that . . . a .08 . . . [is] in fact at that per

se DUI level.” Spencer was sentenced to 180 days in jail with all

but two days suspended and given two days credit for time

served, issued a $1,460 suspended fine for the DUI conviction, and

issued a $100 fine for the open container conviction.

ISSUE AND STANDARD OF REVIEW

¶13 On appeal, Spencer asserts that there was insufficient

evidence to prove beyond a reasonable doubt that he was guilty

3. Spencer is not challenging the open container conviction on

appeal.

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State v. Spencer

of a per se DUI. A “claim of insufficient evidence at a bench trial”

is reviewed “for clear error.” State v. Ayala, 2022 UT App 1, ¶ 15,

504 P.3d 755.

ANALYSIS

¶14 “When reviewing a bench trial for sufficiency of the

evidence, we must sustain the trial court’s judgment unless it is

against the clear weight of the evidence, or if we otherwise reach

a definite and firm conviction that a mistake has been made.” State

v. Ayala, 2022 UT App 1, ¶ 15, 504 P.3d 755 (cleaned up). “An

example of an obvious and fundamental insufficiency is the case

in which the State presents no evidence to support an essential

element of a criminal charge.” State v. Schroeder, 2023 UT App 57,

¶ 17, 531 P.3d 757 (cleaned up).

¶15 For Spencer to be convicted of a per se DUI, the State must

prove beyond a reasonable doubt that Spencer “operate[d] or

[was] in actual physical control of a vehicle” and “that a

subsequent chemical test show[ed] that [Spencer] ha[d] a blood or

breath alcohol concentration of .08 grams or greater at the time of

the test.” Utah Code § 41-6a-502 (2018). The State presented

sufficient evidence to support these required elements. 4

¶16 In the State’s case in chief, State Toxicologist testified that

Spencer’s blood alcohol concentration at the time of the test was

.08 grams per 100 milliliters of blood. The State Lab’s final

toxicology report that reported Spencer’s blood alcohol

concentration as .08 was admitted as an exhibit. Even though

Spencer presented evidence through the testimony of Director

and the admission of exhibits that showed that the Colorado Lab’s

test produced a result of .079, Spencer did not introduce any

4. Spencer does not dispute that he operated or was in actual

physical control of a vehicle at the time of the traffic stop.

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State v. Spencer

evidence that invalidated the test results presented by the State.

In fact, Spencer’s expert, Director, testified that the difference

between the two test results was not statistically significant. And

because Spencer did not undermine or invalidate the results of the

State Lab’s test, the factfinder was presented with two valid tests

to consider and weigh in deciding if Spencer was guilty of a per

se DUI.

¶17 It is widely accepted that “weighing the evidence” and

choosing “between conflicting evidence” is exclusively the role of

the factfinder. State v. Lyden, 2020 UT App 66, ¶ 14, 464 P.3d 1155.

And appellate courts are “not normally in the business of

reassessing or reweighing evidence.” State v. Prater, 2017 UT 13,

¶ 32, 392 P.3d 398. Therefore, because it is the factfinder’s

responsibility to determine “which evidence to believe when

conflicting evidence is presented,” merely identifying

inconsistent or contradictory evidence that was presented “is

generally not sufficient to overturn a verdict.” Layton City v. Carr,

2014 UT App 227, ¶ 10, 336 P.3d 587.

¶18 The State presented evidence that Spencer had a blood

alcohol concentration of .08 and that he operated a vehicle, thus

satisfying all the elements required to convict Spencer of a per se

DUI. And while Spencer presented evidence that provided a

different result than the State Lab’s test, this evidence did not

invalidate the State’s evidence that his blood alcohol

concentration was .08. Instead, Spencer’s expert testified that the

Colorado Lab’s results confirmed the State Lab’s results “within

their measurement [of] uncertainty” and that there was not a

statistically significant difference between the two test results.

¶19 Thus, the district court was presented with two valid but

conflicting blood tests, one that placed Spencer’s blood alcohol

concentration above the legal limit and one that placed it just

below. Both test results could fairly be considered by the

factfinder, who was responsible for weighing and assessing the

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State v. Spencer

conflicting evidence. See State v. Wall, 2020 UT App 36, ¶ 57, 460

P.3d 1058 (holding that when two experts come to “different

conclusions from [the] same evidence, the weight to be given to

such conflicting expert opinions is solely the province of the

[factfinder]”). The district court considered both test results and

accepted the result of the State Lab’s test.

¶20 Here, “we cannot conclude that reasonable minds must

have entertained a reasonable doubt about the essential elements

of the” per se DUI charge. State v. Plexico, 2016 UT App 118, ¶ 18,

376 P.3d 1080 (cleaned up). Given that Spencer’s own expert

confirmed that the Colorado Lab’s result of .079 was not a

statistically significant difference from the State Lab’s result of .08

and was “within the [State Lab’s] measurement [of] uncertainty,”

Spencer has failed to meet his burden of demonstrating that the

district court’s decision was against the clear weight of the

evidence. Thus, we are not persuaded that any mistake was made.

CONCLUSION

¶21 Sufficient evidence supported the district court’s finding

that Spencer’s blood alcohol concentration was .08, and that he

was therefore guilty of a per se DUI. Accordingly, we affirm

Spencer’s conviction.

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APPENDIX C

Utah Supreme Court: Denial of Petition for Writ of

Certiorari

The Order of the Court is stated below:

Dated: August 27, 2025

/s/ John A. Pearce

01:30:25 PM

Justice

IN THE SUPREME COURT OF THE STATE OF UTAH

----ooOoo----

ORDER

Supreme Court No. 20250779-SC

STATE OF UTAH,

Respondent,

DEAN SPENCER,

Petitioner.

Court of Appeals No. 20230863-CA

Trial Court No. 191101244

----ooOoo---This matter is before the Court upon a Petition for Writ of Certiorari filed on July 8,

2025.

IT IS HEREBY ORDERED that the Petition for Writ of Certiorari is denied.

End of Order - Signature at the Top of the First Page

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