Assmann v. State, Department of Public Safety

2013 UT App 81
_________________________________________________________

THE UTAH COURT OF APPEALS

SHANE ASSMANN,

Petitioner and Appellant,

v.

STATE OF UTAH, DEPARTMENT OF PUBLIC SAFETY, DRIVER LICENSE
DIVISION, NANNETTE ROLFE,

Respondents and Appellees.

Per Curiam Decision
No. 20120270‐CA
Filed April 4, 2013

Third District, Tooele Department
The Honorable Robert W. Adkins
No. 110300908

Linda M. Jones, Troy L. Booher, and Noella A. Sudbury,
Attorneys for Appellant
John E. Swallow and Nancy L. Kemp,
Attorneys for Appellee

Before JUDGES THORNE, ROTH, and CHRISTIANSEN.

PER CURIAM:

¶1 Shane Assmann appeals the district court’s decision
following a trial de novo affirming the administrative revocation
of his driver license for a period of thirty‐six months. We affirm.

¶2 “A person operating a motor vehicle in this state is consid‐
ered to have given . . . consent to a chemical test of the person’s
breath, blood, urine or oral fluids . . . .” Utah Code Ann. § 41‐6a‐
520(1)(a) (LexisNexis 2010). The peace officer requesting a test
Assmann v. Department of Public Safety

shall warn a person that refusal to submit to the test
or tests may result in revocation of the person’s
license to operate a motor vehicle . . . if the person:
(i) has been placed under arrest; (ii) has then been
requested . . . to submit to any one or more . . .
chemical tests . . . ; and (iii) refuses to submit to any
chemical test requested.

Id. § 41‐6a‐520(2)(a). If, after receiving the warning, “the person
does not immediately request that the chemical test or tests offered
by a peace officer be administered, a peace officer shall, on behalf
of the Driver License Division . . . give notice of the . . . Division’s
intention to revoke the person’s privilege or license to operate a
motor vehicle.” Id. § 41‐6a‐520(2)(b).

¶3 In this case, there were disputed factual issues concerning
whether the trooper gave the admonitions required by statute and,
if so, whether Assmann refused to consent to the requested
chemical tests. “Our review of a trial de novo on a driver license
suspension is ‘deferential to the trial court’s review of the evidence
unless the trial court has misapplied principles of law or its
findings are clearly against the weight of the evidence.’” Decker v.
Rolfe, 2008 UT App 70, ¶ 9, 180 P.3d 778 (quoting Lopez v.
Schwendiman, 720 P.2d 778, 780 (Utah 1986)). A “determination that
plaintiff’s failure to respond to the officer or to take the test
amounts to a refusal is a factual finding which we will not disturb
when supported by substantial evidence.” Lee v. Schwendiman, 722
P.2d 766, 767 (Utah 1986) (per curiam).

¶4 Assmann first claims that the district court plainly erred by
failing to require the Driver License Division to produce a copy of
the warrant obtained to test his blood. Assmann did not raise his
challenge under rule 1002 of the Utah Rules of Evidence (the best
evidence rule) in the administrative proceedings or the trial de
novo. On appeal, Assmann argues that the Division “heavily relied
on the warrant in its case in chief” to prove Assmann refused to
submit to a chemical test. This mischaracterizes the Division’s

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Assmann v. Department of Public Safety

evidence presented in the trial de novo. The Division presented
testimony from the trooper that he read the admonitions verbatim
from his computer and recorded Assmann’s negative responses on
a DUI Report Form that was admitted as evidence. The fact that a
warrant for a blood test was later obtained was not relied upon by
the Division to prove the failure to consent, and the Division
objected to questions regarding the subsequently obtained warrant
as irrelevant to the issue of lack of consent. Assmann argues that
production of the warrant and warrant application “may have
shown that [the trooper] obtained a warrant in lieu of giving the
refusal admonitions,” essentially suggesting that the trooper’s
testimony that he read the admonitions and recorded the responses
was not credible and should have been disregarded or discounted
by the district court.

¶5 The Division argues that the content of the warrant was not
relevant to the issue of refusal to consent to a chemical test. See
Utah R. Evid. 1002 (“An original writing, recording, or photograph
is required in order to prove its content . . . .”). The factual dispute
concerned whether Assmann refused to submit to chemical testing
after receiving the admonitions required by the implied consent
statute. The Division asserts that “because [Assmann’s] refusal is
independent of the warrant, the best evidence rule does not
obligate the Division to produce the warrant, obtained only after
the refusal was complete, [in order] to prove the refusal,” and also
argues that although the trooper could testify that he later obtained
a warrant for a blood test, “[e]ven had the trooper declined to
pursue further testing, the result would be the same: revocation of
petitioner’s license.” We agree. It was not necessary to prove the
content of the warrant or warrant application in the license
revocation proceeding because the warrant was not relevant to the
issue of refusal to consent to a chemical test. The district court did
not err by not sua sponte requiring production of the warrant or
the application.

¶6 Assmann next claims that the evidence was insufficient to
support the district court’s findings that Assmann was given the

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refusal admonitions or that he refused to submit to a chemical test.
Assmann also necessarily challenges the district court’s witness
credibility determination. The trooper testified that Assmann
refused to submit to a chemical test after receiving the required
admonitions, while Assmann denied that he received any
admonitions or refused a chemical test. Assmann argues that the
district court relied solely upon the trooper’s testimony that a
warrant was obtained for a blood test after Assmann refused to
take a chemical test, but this argument discounts the other evidence
presented to the district court and fails to marshal evidence
supporting the findings. Significantly, the district court’s only
reference to the warrant appears in its findings on credibility.
There, the district court states, “If this Court would find
[Assmann’s] testimony credible, we would have the situation
where the trooper did not request that [Assmann] submit to a
chemical test, but instead got a warrant for [his] blood.” The
district court did not find this to be a credible possibility and
otherwise found the trooper’s testimony to be more credible. We
defer to a trial court’s determinations on credibility. See Salt Lake
City v. Hughes, 2011 UT App 128, ¶ 5, 253 P.3d 1118 (“It is the
province of the trier of fact to assess the credibility of witnesses,
and we will not second‐guess the trial court where there is a
reasonable basis to support its findings.”).

¶7 The trooper stopped the vehicle Assmann was driving for
speeding. Upon contact, the trooper could smell a strong odor of an
alcoholic beverage coming from Assmann’s mouth. Assmann’s
speech was slurred and his eyes were bloodshot and glassy. The
trooper had Assmann perform field sobriety tests and perform a
preliminary breath test, which was positive for alcohol. Assmann
was arrested for driving under the influence of alcohol and placed
in the rear seat of the police vehicle. The district court found that
the trooper asked Assmann to take an intoxilyzer test and read him
the chemical test admonitions verbatim off of the DUI Report Form
while they were in the police vehicle. The trooper testified that after
reading the admonition, he asked Assmann for a response to the
request to submit to a chemical test, and Assman responded,

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Assmann v. Department of Public Safety

“Nope.” The district court found that the trooper then read the
refusal admonition verbatim off of the DUI Report Form, which
informed Assmann that if he refused the test, his driving privilege
could be revoked for 18 months or until age 21 for a first refusal or
for 36 months or until age 21 for a second or subsequent refusal.
Assmann again responded, “No.” The trooper then obtained a
warrant for Assmann’s blood, and his blood was drawn pursuant
to the warrant. Based upon the evidence, the district court found
that the trooper requested the chemical test, that he read the
chemical test admonitions, including the refusal admonition, and
that Assmann responded that he would not take the requested test.
At the trial de novo, Assmann testified that the trooper gave none
of the admonitions, placed him in a cell, and obtained a warrant for
a blood test. However, he admitted that he had testified at the
administrative hearing that he stopped listening to the trooper after
being placed under arrest, and he repeated that testimony in the
trial de novo. Accordingly, the district court concluded that
Assmann refused the requested chemical test after the trooper read
him the required admonitions.

¶8 The district court’s findings were supported by substantial
evidence. Furthermore, the district court did not misapply the law
and its findings are not clearly against the weight of the evidence.
Accordingly, we affirm the district court’s decision upholding the
revocation of Assmann’s driver license.

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