SLC v. Hon. McCleve

2008 UT 41
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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Salt Lake City, 	No. 20070957
Plaintiff and Petitioner,
v.
The Honorable Sheila K. McCleve,
Judge of the Third District Court, 	F I L E D
Salt Lake County,
Respondent, 	July 8, 2008
Sarah McKenna,
Defendant and Respondent.
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Original Proceeding in this Court
Attorneys: 	Simarjit Singh Gill, Edward A. Berkovich,
Salt Lake City, for petitioner
Brent M. Johnson, Salt Lake City, for respondent
Judge McCleve
David E. Rosenbloom, Park City, for respondent
McKenna
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WILKINS, Justice:
¶1 	Salt Lake City has petitioned for extraordinary relief
following an adverse ruling by the Honorable Sheila K. McCleve
in a proceeding by the City against Sarah McKenna. 	We grant the
relief requested and remand the case to the district court, with
leave for Salt Lake City to withdraw its prior certification.
BACKGROUND
¶2 	On November 30, 2006, Sarah McKenna was arrested for
driving under the influence, and subsequently submitted to a
breath test to determine her blood-alcohol level. 	She was later
charged in the Salt Lake City Justice Court with violating Utah’s
DUI statute.

1 Title 78 was recently recodified, and thus we cite to the
present citation of the statute cited, by the parties in their
briefs, as Utah Code section 78-5-120(4)(e) (2002).
2 McKenna alleges, and the City does not dispute, that the
City has other evidence of intoxication, e.g., field sobriety
tests, that it could use to prosecute her under the relevant
statute.
No. 20070957 	2
¶3 	Before her trial, McKenna successfully moved the
justice court to suppress the breath test results. 	Salt Lake
City appealed the justice court order to the district court,
which has statutorily limited appellate jurisdiction over such
matters. 	In order for the district court to have jurisdiction to
review the justice court’s order, Utah Code section 78A-7-
118(4)(e) requires the prosecutor to certify that the suppression
order “prevents continued prosecution.” 	Utah Code Ann. § 78A-7-
118(4)(e) (2008). 1
¶4 	The City so certified, but the district court carefully
reviewed the substance of the City’s certification and ruled that
it was improper. 	The district court concluded that since the DUI
statute allowed for alternative methods of proof, one of which
did not require a breath test, continued prosecution under the
charge was not actually prevented. 2 	Accordingly, the district
court remanded the case to the justice court for further
prosecution without considering the merits of the City’s
challenge to the order suppressing the breath test results. 	The
City filed this petition for extraordinary relief, seeking to
overturn the district court’s decision based on the content of
the certification and to obtain a de novo hearing on the
propriety of the suppression order in the district court.
ANALYSIS
¶5 	Extraordinary relief may be available upon a showing
that the lower court has exceeded its permitted range of
discretion, and a mistake of law may constitute such an excess.
See State v. Barrett, 2005 UT 88, ¶ 26, 127 P.3d 682. 	Although
relief may be available, we only grant relief after considering
multiple factors, including “the egregiousness of the alleged
error, the significance of the legal issue . . . , the severity
of the consequences occasioned by the alleged error, and
additional factors.” 	Id. ¶ 24. 	The scope of review is limited
to determining “whether the respondent [in this case, the
district court judge] has regularly pursued its authority.” 	Utah
R. Civ. P. 65B(d)(4).

3 	No. 20070957
¶6 	Utah Code section 78A-7-118 governs the process for
appealing justice court decisions. 	Section 118(4) states: “The
prosecutor is entitled to a hearing de novo in the district court
on: . . . (e) a pretrial order excluding evidence, when the
prosecutor certifies that exclusion of that evidence prevents
continued prosecution . . . .” 	Utah Code Ann. § 78A-7-118(4)(e)
(2008). 	The parties to this case differ significantly on the
deference that a district court should accord such a
certification, on the meaning of “prevents” in the statute, and
on whether the City’s certification that prosecution was
prevented also takes into account the alternate methods of proof
available in the DUI statute.
¶7 	As the plain language of section 118 suggests, whether
a prosecutor receives a de novo hearing on a justice court
suppression order is subject to only one condition: that the
prosecutor certify that the order excluding evidence prevents
continued prosecution. 	The statute does not require the district
court to look behind the certification. 	Instead, upon
certification, a prosecutor is entitled to a de novo hearing by
the district court, limited in scope to the contested order.
Accordingly, the district court in this case exceeded its
permitted discretion by engaging in an examination of the merits
of the City’s certification.
¶8 	Certification by the prosecutor also has other
implications. 	If, at the de novo hearing, the district court
concludes that the evidence was improperly excluded, then the
case should be remanded to the justice court to continue its
proceedings, with the challenged evidence admitted. 	If the
district court finds, however, that the evidence was properly
excluded, then the case should be dismissed, not remanded. 	A
prosecutor who certifies that the exclusion of evidence “prevents
continued prosecution” is not entitled, following an adverse
ruling from the district court, to continue prosecution of the
same charge. 	The law takes the prosecutor’s certification at its
word.
¶9 	We interpret “prevents” in section 118(4)(e) according
to its plain meaning: a total inability to prosecute the case.
Certification that continued prosecution is prevented, therefore,
means that the prosecutor is totally unable to prosecute the
defendant under the charge. 	A prosecutor will be held to such a
certification. 	Consequently, such a certification should be made
with care.
¶10 	In this case, McKenna was charged with violating Utah’s
DUI statute, which states:

No. 20070957 	4
A person may not operate or be in actual
physical control of a vehicle within this
state if the person:
(a) 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;
(b) is under the influence of alcohol,
any drug, or the combined influence of
alcohol and any drug to a degree that renders
the person incapable of safely operating a
vehicle;
(c) has a blood or breath alcohol
concentration of .08 grams or greater at the
time of operation or actual physical control.
Utah Code Ann. § 41-6a-502(1)(a)-(c) (2005). 	The subsections of
502(1), although not explicitly disjunctive, are clearly
alternate ways of proving that a defendant is operating a vehicle
under the influence of alcohol or drugs. 	Under section 502(1),
therefore, a prosecutor who certifies under section 78A-7-
118(4)(e) that continued prosecution is prevented is certifying
that he is unable to prosecute the defendant under any of the
alternate methods listed in the subsections. 	Thus, if the City
receives an adverse ruling from the district court in the de novo
hearing on the suppression order, the city must dismiss the
charge filed against McKenna.
¶11 	While the district court’s error here was not
egregious, the legal issue is significant; there are many similar
cases pending in the district courts which raise this very issue.
Because of the significance of the issue, we find that
extraordinary relief is warranted. 	See Barrett, 2005 UT 88,
¶ 24.
CONCLUSION
¶12 	We hold that the district court exceeded its permitted
discretion by seeking to determine whether the City’s
certification was merited. 	We further hold that extraordinary
relief is warranted because of the significance of the legal
issue. 	We therefore remand this case to the district court for
de novo review of the suppression order.
¶13 	We also recognize, however, that this clarification of
the operation of Utah Code section 78A-7-118(4)(e) entails what

5 	No. 20070957
may have been unexpected consequences resulting from the
prosecutor’s certification. 	We therefore also grant the City
leave to withdraw its certification, if it so wishes, in which
case the matter will return to the justice court for further
proceedings.
¶14 	The petition for extraordinary relief is granted, and
the case is remanded.
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¶15 	Chief Justice Durham, Associate Chief Justice Durrant,
Justice Parrish, and Justice Nehring concur in Justice Wilkins’
opinion.