Is reckless driving a lesser included offense of DUI in Utah? State v. Higley Explained

In State v. Higley, the Utah Court of Appeals addressed whether reckless driving qualifies as a lesser included offense of DUI, providing important guidance for criminal defense practitioners on jury instruction requests.

Background and Facts

Gregory Scott Higley was found sleeping in his vehicle at an intersection with the engine running. Officers administered field sobriety tests, which Higley failed, and he was subsequently arrested for DUI. A search of his vehicle revealed heroin in a cigarette box. Higley’s blood test showed Xanax consistent with clinical use. At trial, defense counsel requested a jury instruction on reckless driving as a lesser included offense of DUI, arguing both were “moving violations.” The court denied the motion.

Key Legal Issues

The appeal centered on two main issues: (1) whether trial counsel provided ineffective assistance by failing to move for arrest of judgment on insufficient evidence, and (2) whether the district court erred in refusing to instruct the jury on reckless driving as a lesser included offense of DUI.

Court’s Analysis and Holding

The Court of Appeals affirmed the conviction on both issues. Regarding the ineffective assistance claim, the court found that any motion to arrest judgment would have been futile given the substantial evidence of impairment, including Higley’s sleeping in an active traffic lane, failed field sobriety tests, and inability to follow officers’ instructions.

More significantly for practitioners, the court held that reckless driving is not a lesser included offense of DUI because the statutory elements do not sufficiently overlap. Reckless driving requires “willful or wanton disregard for safety” (a mens rea element), while DUI is a strict liability crime requiring proof of impairment and incapacity to safely operate a vehicle. Although both offenses involve operating a vehicle, this single overlapping element is insufficient to establish a lesser included offense relationship.

Practice Implications

This decision clarifies Utah’s approach to lesser included offenses in DUI cases. Defense attorneys should carefully analyze whether proposed lesser offenses share sufficient statutory elements beyond basic operational requirements. The court’s emphasis on different mental state requirements between offenses provides guidance for future instruction requests and highlights the importance of understanding the distinct elements that separate related charges.