Can driving with measurable controlled substances be a lesser included offense of DUI? State v. Wallace Explained

In State v. Wallace, the Utah Court of Appeals addressed whether driving with any measurable controlled substance constitutes a lesser included offense of driving under the influence, while also examining multiple claims of ineffective assistance of counsel.

Background and Facts

Conservation Officer Paul Davis discovered Wallace’s illegally parked vehicle near the Green River at Flaming Gorge. During the encounter, Davis found drug paraphernalia in Wallace’s vehicle and learned Wallace’s driver’s license was suspended with an outstanding warrant. After handcuffing Wallace and placing evidence in his patrol car, Davis observed Wallace attempting to kick the evidence bag under the seat. At the jail, Wallace refused voluntary blood testing but became combative when officers obtained a search warrant for a blood draw, ultimately punching an officer before being restrained. Wallace left the courthouse on trial day and was convicted in absentia on multiple charges.

Key Legal Issues

Wallace raised several arguments on appeal: (1) the trial court erroneously instructed the jury that driving with measurable controlled substances was a lesser included offense of DUI, (2) trial counsel provided ineffective assistance in multiple respects, (3) the court improperly denied his motion for continuance to obtain new counsel, and (4) insufficient evidence supported his assault conviction.

Court’s Analysis and Holding

The court analyzed Utah Code Ann. § 41-6-44.6, which begins “In cases not amounting to a violation of Section 41-6-44,” concluding the Legislature intended the measurable controlled substance offense to reference and complement the DUI statute. The court found the “legal elements and actual evidence” needed for the measurable controlled substance conviction are necessarily included within the DUI offense, satisfying the Baker test for lesser included offenses.

Regarding ineffective assistance, the court applied the Strickland standard, finding trial counsel’s decisions were reasonable tactical choices. The court noted counsel’s failure to object to a proper jury instruction, challenge a valid search warrant, or seek futile motions did not constitute deficient performance. The court also determined the trial court properly inquired into Wallace’s complaints about counsel and reasonably denied the continuance motion based on Wallace’s pattern of non-cooperation.

Practice Implications

This decision clarifies the relationship between Utah’s DUI and measurable controlled substance statutes, establishing that the latter serves as a lesser included offense. For practitioners, the case demonstrates the importance of preserving objections at trial, as Wallace’s unpreserved challenge to the jury instruction faced plain error review. The opinion also illustrates that tactical decisions regarding expert witness preparation and case strategy receive deference under ineffective assistance analysis, particularly when counsel demonstrates familiarity with the subject matter and makes informed strategic choices about trial timing.