Opinion
Case No. 20050765-CA.
Filed July 13, 2006.
Appeal from the Second District, Ogden Department, 041901845, The Honorable W. Brent West.
Dee W. Smith, Ogden, for Appellant.
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.
Before Judges Billings, McHugh, and Orme.
MEMORANDUM DECISION
Appellant Johnnie Borden Millsap entered a conditional no contest plea to driving under the influence of alcohol, a class A misdemeanor. Millsap reserved the right to appeal the denial of his motion claiming that Utah Code section 41-6-44(2)(a)(i) was unconstitutionally vague on its face. See Utah Code Ann. § 41-6-44(2)(a)(i) (Supp. 2002).
The statute was renumbered in 2005 and now appears as Utah Code section 41-6a-502. See Utah Code Ann. § 41-6a-502 (2005).
The portion of the DUI statute that Millsap challenged was amended in 2002. Prior to amendment, the provision prohibited a person from operating or being in actual physical control of a vehicle if the person "has sufficient alcohol in his body that a chemical test given within two hours of the alleged operation or physical control shows that the person has a blood alcohol concentration of .08 grams or greater." Utah Code Ann. § 41-6-44(2)(a) (2001). As amended, Utah Code section 41-6-44(2)(a)(i) reads:
A person may not operate or be in actual physical control of a vehicle within this state if the person:
(i) 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 greater at the time of the test. . . .
Utah Code Ann. § 41-6-44(2)(a)(i) (Supp. 2002).
The district court ruled that Millsap had no standing to challenge the statute as unconstitutionally vague on its face because the statute clearly proscribed his conduct. The court stated that a person whose case involved "a more significant period of time between the operation of a vehicle and the taking of an Intoxilyzer test would be better suited to challenge the DUI statute." Because we conclude that the district court's ruling on standing was correct, it is not necessary to consider the alternative ruling that the statutory language is not unconstitutionally vague.
A person challenging a statute as vague on its face must show that it is impermissibly vague in all of its applications. See Greenwood v. North Salt Lake, 817 P.2d 816, 819-20 (Utah 1991). "A [party] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." Id. at 820 (citing Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95 (1982)). Accordingly, a court must examine the complaining party's own conduct "before analyzing other hypothetical applications of the law." Id. If a statute is not unconstitutionally vague as it applies to the complaining party, it is not void for vagueness on its face. See id. In State v. Ansari, 2004 UT App 366, 100 P.3d 231, we ruled that the appellants lacked standing to assert a facial challenge for vagueness because they "raised no uncertainty regarding the statute's proscription of their conduct," and accordingly, "we refuse[d] their invitation to conjure conditions under which the statute could be vague." Id. at ¶ 45.
Millsap does not demonstrate that the statute is unconstitutionally vague as applied to him. He conceded that the intoxilyzer test was administered within one hour of his traffic stop. However, he claims that the present statutory language does not require the State to demonstrate that a person was under the influence at the time he was in actual physical control of the vehicle and "a person could be convicted for DUI when they consumed alcohol a week or a month after they drove the vehicle." That situation did not arise in the case before us. We conclude that the district court did not err in holding that Millsap did not have standing to challenge the statute as vague on its face. We do not consider the district court's alternative ruling on the merits of the constitutional challenge.
We affirm.
Judith M. Billings, Judge, Carolyn B. McHugh, Judge, Gregory K. Orme, Judge.