What happens when objections are made off the record in Utah criminal trials? State v. Prawitt Explained

The Utah Court of Appeals decision in State v. Prawitt provides crucial guidance for criminal defense attorneys about preserving objections for appellate review. The case highlights the importance of ensuring all objections are made on the record and the consequences of failing to do so.

Background and Facts

Officer Toscano discovered Prawitt asleep in the driver’s seat of a legally parked vehicle at 2:30 a.m., with his leg hanging out the window. Toscano arrested Prawitt for driving under the influence after determining he had actual physical control of the vehicle and was intoxicated. A subsequent search revealed open beer containers. Prawitt claimed to have made objections during voir dire and to a jury instruction regarding breath test refusal, but these objections occurred during unrecorded bench conferences and chambers discussions.

Key Legal Issues

The court addressed three main issues: (1) whether unrecorded objections violated Prawitt’s due process rights; (2) whether a jury instruction on breath test refusal improperly shifted the burden of proof; and (3) whether the district court properly denied Prawitt’s motion to suppress evidence when the officer hadn’t observed keys in Prawitt’s possession before arrest.

Court’s Analysis and Holding

The court found no due process violation, emphasizing that while district courts share responsibility for maintaining adequate records, “the ultimate burden is on a defendant ‘to make certain that the record he compiles will adequately preserve his arguments for review.'” Prawitt failed to request that conferences be conducted on the record or to reconstruct the record using Utah Rule of Appellate Procedure 11(g), which allows supplementation through affidavits. The court rejected the jury instruction challenge for lack of preservation and found it harmless given overwhelming evidence of guilt. Finally, the court affirmed the denial of the suppression motion, concluding that under the totality of circumstances test from Richfield City v. Walker, probable cause existed for actual physical control even without direct observation of the keys.

Practice Implications

This decision underscores the critical importance of preservation of error in criminal appeals. Defense counsel must be proactive in ensuring objections are made on the record, particularly during voir dire and jury instruction conferences. When objections occur off the record, attorneys should immediately create a record or use Rule 11(g) to supplement the record on appeal. The decision also clarifies that actual physical control determinations depend on multiple factors, not just key possession, making suppression motions more challenging in DUI cases.