Last Call

DUI Attorney Jason Schatz knows the sobriety test so well, even some police officers don’t pass.

By Ted McDonough (Posted 12/28/2006)

A guy walks into a bar on West Temple having just been cited for driving under the influence in the parking lot.

“I wasn’t even driving,” Matt Dahlman complains to another patron while nursing his beer. The police officer only came over because his buddy was urinating in a parking lot.

“You know, I just had a DUI,” the patron responds, “I got a really good lawyer.” He hands Dahlman a phone number for attorney Jason Schatz.

It’s pronounced “shots,” and belongs to a 5-foot-8 inch tornado who, in three years since graduating from the University of Utah law school, has rapidly made a name for himself by disproving the widely held notion that you can’t beat a Utah DUI.

His clients included a man who passed out at the Wendy’s drive-thru window at 6:30 a.m. with his keys in the ignition and car running. He blew .17 on a breathalyzer and told police he’d had several beers plus several shots of Jägermeister within an hour of closing time. Not guilty. Another client was driving 15 mph while looking for a place to stop and pee. Pulled over by police, he wet his pants in back of the patrol car. He was found intoxicated at three times the legal limit, but his case was dismissed. There was no legal reason for officers to stop his car.

“A lot of people ask me if I feel bad when someone guilty gets off,” said Schatz, 32, talking a mile a minute in the rapid staccato of an ESPN announcer. “I say, ‘No, I feel great.’ I did my job. It just means somebody didn’t do theirs.”

Schatz has become expert at pointing out where and when the police didn’t do their jobs. He’s made a study of the field sobriety test, the hoops officers put you through—standing on one foot, walking the line—to determine if you’ll be arrested for drunken driving.

Maybe you wouldn’t have done so badly, said Schatz, if the cop giving the test knew what he was doing. Few do, he said. That maybe the dirty little secret behind the success of his law practice.

As “the most anal person you’ve ever met” Schatz knows the test inside and out. In fact, he’s constantly working on new angles.

In one case, he subpoenaed the Weber State University field sobriety course instructor in order to quiz a testifying cop about what he’d learned in class. From the bookcase next to his desk, Schatz pulls out a box of recently purchased stopwatches he’s planning to use someday to time a police officer on the stand, although he hasn’t exactly figured out how to work the scheme.

Not that long ago, Schatz was the kid who was always getting in trouble—and always wheedling his way out. You can see occasional flashes of the mischievous youngster in his light blue eyes.

DUI Is His Calling

Raised in North Dakota, where the annual per person beer consumption of 30-plus gallons ranks near the highest in the country, the self-proclaimed youthful partier brings a outsider’s eye to DUI law in Utah, where residents have the nation’s lowest annual beer consumption at 12 gallons per person.

Schatz came to Utah for the skiing but couldn’t have picked a better place to buck the conventional wisdom on drunken driving.

Utah is one of few states with an official committee meeting year-round to draft new DUI legislation. New tougher drunken-driving laws are passed almost every year. In the past two years, Utah added requirements that anyone refusing to take a blood alcohol test have a breathalyzer hooked into their car’s ignition and created a class of “alcohol-restricted” drivers, people prohibited from driving with any alcohol in their system for years at a time. And if you’re an attorney, you get to argue cases before juries who’ve never had a drink in their lives.

Today, as most days, Schatz is driving between court appearances stacked back-to-back: a morning preliminary hearing in Salt Lake City, an 11 a.m. hearing at a state driver license office in Farmington, then afternoon court in West Jordan, all from his “portable office,” a one-year-old, white H3 Hummer with 18,000 miles and a stack of field sobriety training manuals in the back. He has 12 trials lined up for January.

For Schatz, DUI is a calling. He always knew he wanted to be a lawyer. His first client was himself, in high school, when he was charged with fleeing after police responded to an alley fight Schatz was watching outside of a party. His defense: How could he flee? He was handcuffed to a fence.

To this day, he retains what might be termed a little problem with authority. He relishes occasions when he gets to cross-examine an officer who refuses to admit making mistakes.

“It gives me the green light to go after him with everything I got,” he said. “Like he picked the fight.”

Schatz thinks a lot of his clients are getting screwed. The majority, he insists, aren’t dangers to society, but people who had a lapse in judgment, or are going through a temporary rough spot that could be worsened by losing a driver license and facing fines upward of $2,000.

Many Ways to Be Impaired

One year after Minnesota became the last state in the country to pass the .08 legal blood-alcohol-limit law, Schatz has the audacity to voice what has been unacceptable in polite conversation since the “Just say no” Reagan administration.

DUI, he says, is an exaggerated problem.

“Most DUIs are, in a way, a victimless crime,” said Schatz. “I’m not saying drinking and driving is good. Yeah, people die in drunk-driving accidents, and I don’t mean to make light of it. But people die in car accidents all the time for a whole slew of different reasons: putting on their makeup, yelling at their kids. Some people are just aggressive drivers. DUIs are singled out. I’m waiting for them to say, ‘Get a DUI, you go to jail for six months.'”

According to a recently published University of Utah study, driving between court dates while talking to a police office via a cell phone, a sin Schatz commits frequently, is just as dangerous, if not more so, than driving with a blood alcohol content just over the limit of .08. None of the vodka-drinking test drivers in the U. study crashed. Three of the cell-phone drivers did.

Then there’s driving while drowsy. Falling asleep at the wheel was cited in 32 Utah traffic deaths in 2004, compared to 37 for DUI. The federal Department of Transportation cites speeding as a factor in twice the number of Utah’s 2005 motor vehicle deaths as drinking.

Drunken driving gets all the attention, says Schatz, thanks to groups like Mothers Against Drunk Driving and news media highlighting every drunken-driving death.

The result, Schatz says, are DUI penalties that can drive you to drink.

A first-time Utah DUI brings a mandatory minimum two days in jail, or 48 hours of community service, and a minimum fine of $1,295. Add in the car-impound fees, towing and fees to get your license back, and the cost will run more than $2,000. Budget another $80 per month if you are ordered to have a breathalyzer system in your car.

“Blown” Opportunities

Schatz got hooked on the DUI courtroom as a third-year law student when he signed on as an intern with Salt Lake Legal Defenders. Law students are allowed to appear in court under supervision, if both the prosecution and defense agree.

But Schatz was routinely winning. So much so that the Salt Lake City prosecutor’s office “tired of it and decided they’d had enough,” said Patrick Corum, who was Schatz’s immediate boss at legal defenders. The city asked a judge to remove Schatz from a DUI case on the eve of trial for what Corum terms a “fabricated” reason. When the judge didn’t buy it, the city prosecutor’s office withdrew permission for Schatz to appear in justice court as a student—ever again.

To this day, the legal defenders office has trouble getting permission for students to appear in court because of that incident, Corum said.

Salt Lake City prosecutor Sim Gill recalled that the city withdrew consent after his attorneys came to him with concerns about courtroom “civility” and lax supervision by the public defender’s office. He termed the episode a typical part of the educational process, or “an important lesson to learn.”

But it’s not clear, three years later, that Schatz learned the lesson.

Schatz’s next stop this day is an outpost of the state Driver License Division for a hearing of a client who allegedly refused a blood-alcohol test after being pulled over in a construction zone.

In Utah, driver licenses are taken away at the time of a DUI arrest. Drivers have 10 days to request a hearing to argue their license shouldn’t be suspended. The stakes can be as high as the DUI case itself—loss of license, permanent record, fees, in-car breathalyzer, “alcohol-restricted” status—and the sanctions can stick even if you are later found not guilty in court. If drivers miss the 10-day window, they might be able to get their license case heard in district court. The Legislature will consider a proposed law in January to erase that chance.

The Cookie Prosecution

The hearing takes place in a small room with white walls bare except for a round plastic clock. Schatz, his client, and the hearing officer sit on either side of a cheap desk. The arresting Highway Patrol Trooper isn’t there but calls in on the phone.

It’s one of Schatz’s pet peeves: With many arresting officers once failing to show for driver license hearings, the Legislature has allowed officers to phone it in.

Schatz asks the trooper why he couldn’t appear it in person.

“I’m making cookies with my wife,” asserts the gruff voice on the speakerphone.

Schatz’s legs are crossed at the ankles under his chair. He leans forward on the desk, his mouth close to the speakerphone, as if he’s trying to get in the trooper’s face via wire. His right foot is shaking 80 mph as he hits the trooper with questions.

“Are you reading your DUI report? I see this word for word. Without looking at the report, do you have any recollection?”

The hearing officer tells Schatz to calm down and stop shouting. Schatz responds he can’t tell if the trooper can hear him on the speakerphone.

Schatz asks the trooper to be sure to send him a copy of the patrol car videotape showing his client being given the field sobriety test. A video of an arrest, when it exists, is one of Schatz’s best tools in court. Without it, all he’s got to go on is the officer’s report and the word of his client, which is worthless in front of juries.

“Everybody thinks cops always tell the truth,” Schatz said later. “I’ve got plenty of videotapes that show they do not.” He wants video required in all patrol cars.

The videotape cuts both ways, he said. “If my client’s s—t-faced, and I can see it, we’re not going to trial.”

With time remaining in the hearing rapidly ticking away, Schatz quizzes the trooper about his claim he “altered” the lights on his car for a sobriety test in which Schatz’s client was asked to watch a pen waved in front of his nose. A good DUI attorney knows police lights can interfere with the test.

Eventually, the cookie-making trooper admits his overhead lights were on, but he’s getting increasingly combative.

“You may have gone to law school,” says the voice from the box. “I’m a certified [DUI] recognition expert.”

“I’m a certified instructor as well,” Schatz fires back.

Not only has Schatz taken the same class as Utah police on field sobriety tests, he’s also trained to teach the course. Such thorough knowledge of the DUI field earns him the respect even of police officers.

Bloodshot-Eye Witness

Salt Lake City Police detective Joe Cyr was so taken by Schatz’s expertise following his own cross-examination that he later stopped in at Schatz’s office to ask his opinion on an aspect of DUI law for a case he was investigating.

“When I was being grilled by him—let me rephrase that—when I was being eaten alive by Jason in court, I was very impressed. He could look at a report and understand every detail,” Cyr said. “He knows DUI law so well that he makes you a better police officer.”

A police report on drunken driving may seem cut and dried on paper. But Schatz has seen cases in which a client refused to take an alcohol test, yet the officer filled out all the appropriate forms noting a blood sample was obtained. The process becomes automatic.

“The eyes are always ‘bloodshot’ [on DUI reports],” Schatz said, recalling times he cross-examined a cop coming off a graveyard shift, starting with a question about the officer’s red eyes.

Crime & Punishment

Schatz is co-chairman of the Utah Association of Criminal Defense Lawyers legislative committee. He’s hoping to get a meeting before January’s legislative session with Sen. Carlene Walker, R-Salt Lake City, the lawmaker who will sponsor this year’s crop of DUI legislation, as she has done for the past five years.

Walker rejects Schatz’s notion that Utah is too hard on DUI. She agrees first timers “very often never offend again,” but says that might well be because of Utah “pulling the chain.”

“I’m not saying people shouldn’t drink,” she said. “Just don’t drive. Don’t drive if you’ve been drinking.”

It sounds simple enough. Don’t drive if you’ve been drinking. But how far can it go? A bill proposed in 2004 by another lawmaker would have made it a crime to drive after a single glass of wine, if children were in the car.

Proponents of Utah’s DUI law point to the fact that the state routinely has the country’s lowest rate of car crashes involving alcohol as evidence the approach is working. Perhaps so. But the numbers might also mean that, in a state with few drinkers, people involved in accidents are less likely to have had anything at all to drink.

In 2004, according to U.S. DOT figures, Utah tied for the nation’s lowest rate of alcohol-related traffic deaths with New Jersey, which passed its .08 threshold law only that same year.

“I know there are people who shouldn’t be driving,” said Schatz. But he has also represented a first-time offender postal worker for whom DUI can be a staggering blow.

“If he loses his license, he loses his job, his marriage goes to hell. He’s going to drink more,” Schatz said. “People don’t realize the effect a DUI has on someone’s life.”

“It’s important that there be enough consequences that they learn the lesson that drinking and driving is dangerous, but it shouldn’t be so severe it temporarily, or sometimes permanently, ruins their life.”

Schatz’s view garners some sympathy from Paul Boyden, head of the state prosecutors association. “We have to be cautious about the punishment that we heap on,” Boyden said, so offenders aren’t set up to fail at rehabilitation.

Utah’s current fines and jail times for first- and second-time DUI offenders are “pretty well maxed out,” he said. To go much higher, DUI would have to be made a felony, a practical impossibility requiring DUI cases be moved from local justice courts into district court, which couldn’t handle the caseload.

That said, there is no ceiling on the public’s appetite for blood when it comes to drinking and driving, said Boyden, and that also must be taken into account. He fielded calls again during this year’s pre-legislative meetings from lawmakers wanting to raise fines and jail sentences for drunken drivers.

So it’s unlikely Schatz will be lacking for clients any time soon. And there’s likely no immediate respite for this lawyer from the question he fields every time he walks into a bar: To blow or not to blow? What should you do when pulled over?

The answer, says Schatz, is “it depends.” Every case is different.

But God help the trooper who turns on his lights behind Schatz.

“If it were me, I’d be doing all these things in my head: How many beers did I have? How much do I weigh? Try to estimate my blood alcohol. I’d try to make the cops screw up. I’d ask for a lawyer and invoke my right to remain silent and see if he read me the warning. If he didn’t, then I’d refuse the test. But if he did, then I’d take the test—if I didn’t think I was too drunk.

“There are so many possible scenarios that there is no blanket answer. I just get them sorted out when all is said and done.”

 

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