When does an Allen charge become coercive under Utah law? State v. Wahlstrom Explained

Background and facts

Mark Wahlstrom was found intoxicated and alone in the driver seat of his truck, parked in the mountains with the key in the ignition. He was charged with DUI based on actual physical control of the vehicle. At trial, defense counsel conceded intoxication and focused entirely on whether Wahlstrom had been in actual physical control, arguing he had called a friend for a ride and was merely waiting. The trial was compressed into a single day, and the jury did not begin deliberating until 6:37 p.m. After several hours and multiple written questions, the jury reported it was deadlocked on the DUI count shortly after 10:00 p.m.

Key legal issues

The court issued an Allen charge drawn verbatim from State v. Dalton, 2014 UT App 68, but used only a portion of that charge—the part directing minority jurors to question the reasonableness of their dissent based on the majority’s contrary view. Critically, the court omitted the counterbalancing language present in Dalton that told jurors they had no absolute duty to reach a verdict and that each juror’s verdict must reflect their own convictions rather than mere acquiescence. The jury returned a guilty verdict eleven minutes later. Defense counsel had not objected to the charge. On appeal, Wahlstrom argued ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984).

Court’s analysis and holding

The Utah Court of Appeals held that the Allen charge was coercive per se because it commanded dissenting jurors to reconsider their positions based on the majority’s view while providing no admonition that they were not to surrender their independently held convictions. The court emphasized that virtually every circuit to address the issue has required some form of protective language as a necessary component of any Allen-type charge. The court further found the charge coercive under the circumstances: deliberations extended well past normal working hours, jurors were never told they could resume the next day or that a mistrial was permissible, and the verdict came eleven minutes after the charge—a timeframe the court compared to the twenty-six-minute turnaround condemned in State v. Harry, 2008 UT App 224. On the ineffective assistance analysis, the court reasoned that defense counsel had strong circumstantial evidence that the minority favored acquittal—not conviction—making the coercive charge directly harmful to the defense. Counsel’s failure to object and seek counterbalancing language was deficient performance, and there was a reasonable probability the jury would have hung absent the charge, establishing prejudice. The court reversed the DUI conviction and remanded for further proceedings. It also remanded for the trial court to resolve a disputed entry in the presentence investigation report (PSI), as required by Utah Code section 77-18-103(5)(a), an error the State conceded.

Practice implications

This decision reinforces that Utah courts regard counterbalancing language—expressly protecting minority jurors from surrendering conscientiously held beliefs—as a near-mandatory component of any Allen charge. Practitioners should have the ABA model instruction and the full text of Dalton, Harry, and Ginter readily accessible when a jury deadlocks. Where the proposed charge omits protective language, a timely objection preserves the issue for direct appeal and avoids the heavier burden of the ineffective assistance of counsel framework. Defense counsel must also analyze, in real time, whether the charge is likely to pressure a minority favoring acquittal—because silence in that circumstance, as this case demonstrates, can constitute constitutionally deficient performance.