2016 UT App 2



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. T HOMAS R ANDALL A INSWORTH ,

Appell ant

. Opinion N o. 20130924

- CA Filed January 7, 2016

Third District Court, Salt Lake Department The Honorable Deno G. Himonas

No. 121902706
David P.S. Mack, Caleb J. Cunningham, and Lori J.

Seppi , Attorney s for Appellant Sean D. Reyes and Jeffrey S. Gray , Attorney s

for Appellee

S ENIOR J UDGE R USSELL W. B ENCH authored th is Opinion , in which J UDGES J. F REDERIC V OROS J R

. and S TEPHEN L. R OTH concurred

. 1

BENCH , Senior Judge :

¶1 Thomas Randall Ainsworth appeals his convictions and sentences for three counts of driving with a measurable amount of a controlled substance in his body and neglig ently causing death or serious bodily injury , second

- degree felonies. See Utah Code Ann. § 58

- 37

- 8(2)(g)

– (h) (LexisNexis Supp . 2015 ) . We vacate Ainsworth’s second

- degree felony convictions and remand for the district court to enter a j udgment of conviction

1

. The Honorable Russell W. Bench, Senior Judge, sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11

- 201(6).State v. Ainsworth

20130924

- CA 2 2016 UT App 2 for three third

- degree felonies and to resentence him accordingly

.

BACKGROUND

¶2 Ainsworth’s actions led to a great tragedy

. On December 24, 2011, Ainsworth drove over a median into oncoming traffic and crashed head

- on into another vehic le. The driver and front passenger sustained serious injury as a result of the crash, and their eighteen

- month

- old child was killed. Ainsworth informed police that he had dropped his cell phone on the floor of his vehicle and was reaching for it when h e lo st control of the vehicle. Following the accident, Ainsworth ’s blood tested positive for me thamphetamine

.
¶3 Ainsworth was charged with three counts of driving with a measurable amount of a controlled substance in the body and negligently causing death or ser ious bodily injury , each a second

- degree felony

. Ainsworth moved t o amend one of these counts to automobile h omicide, a third

- degree felony, and the other two to driving under the influence of alcohol or drugs and

caus ing serious bodily injury (DUI With Se rious I njury), also a third

- degree felony, on the gr ound that section 58

- 37

- 8(2)(g) and (h) of the Utah Code (the Measurable Amount Statute ), unde r which he was charged, violate the Utah Constitution’s uniform ope ration of laws provision

. In the alternativ e, he moved the court to reduce all three of his charges to third

- degree felonies. The district co urt denied Ainsworth’s motion. Ainsworth then moved the court to declare the Measurable Amount Statute unconstitutional as applied and to r econsider the motion to amend. The district court again denied Ainsworth’s motion.

¶4 Ainsworth pleaded guilty to all three charges under the Measurable Amount Statute but reserved his right to appeal the constitutionality of the statute

. Ainsworth requested conc urrent sentencing, but the district court ordered that Ainsworth serveState v. Ainsworth

20130924

- CA 3 2016 UT App 2 three consecutive prison terms of one to fifteen years each. Ainsworth now appeals.

ISSUES AND STANDARDS OF REVIEW

¶5 Ainswo rth first asserts that the district court erred in concludin g that the Measurable Amount Statute was constitutional . “Constitutional challenges to statutes present questions of law, which we review for correctness.” State v. Robinson , 2011 UT 30, ¶ 7, 254 P.3d 183 (citation and internal quotation marks omitted)

.
¶6 Ai ns worth also asserts that the district court exceeded its discretion by imposing consecutive sentences. “Because trial courts are afforded wide latitude in sentencing, a court’s sentencing decision is reviewed for an abuse of discretion.” State v. Epling , 2011 UT App 229, ¶ 8, 262 P.3d 440 (citation and internal quotation marks omitted)

.

ANALYSIS

I. Constitutionality of the Measurable Amount Statute

¶7 Ainsworth asserts that the Meas urable Amount Statute violates Article I, S ection 24 of the Utah Constitution, kn own as the uniform operation of laws provision, by making impermissible distinctions between those who may be charged under the Automobile Homicide Statute and the DUI With Serious Injury Statute and those who may be charged under the Measurable Amount Sta tute.

¶8 Under the Automobile Homicide Statute, a person who, while “under the influence of alcohol, any drug, or the combined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle,” “operates aState v. Ainsworth

20130924

- CA 4 2016 UT App 2 motor ve hicle in a negligent mann er causing the death of another ” commits a third

- degree felony

. Utah Code Ann. § 76

- 5

- 207 (2)(a) (LexisNexis 2012). Under the DUI With Serious Injury Statute, a person who, while “under the influence of alcohol, any drug, or the com bined influence of alcohol and any drug to a degree that renders the person incapable of safely operating a vehicle,” “inflicted serious bodily injury upon another as a proximate result of having operated th e vehicle in a negligent

manner ” also commits a t hird

- degree felony. Id. §§ 41

- 6a

502(1)(b),

- 503(2) (a) (2014). But under the Measurable Amount Statute, a person who , “in an offense not amounting to a violation of *the Automobile Homicide Statute+,” “knowingly and intentionally *has+ in the person’s body any measurable
amount ” of a Schedule I or II controlled substance (such as methamphetamine) without a valid prescription, “operates a motor vehicle . . . in a negligent manner,” and causes either death or s erious bodily inju ry to another commits a second

degree felony

. Id. § 58

- 37

- 8(2)(a)(i), (g) , (h)(i) (Supp. 2015 ).

¶9 Ainsworth asserts tha t the Measurable Amount Statute violates the uniform operation of l aws provision in two ways: first, by distinguishing between those who have a prescription for a control led substance and those who do not and , second, by classifying a violation of the Measurable Amount Statute by use of a Schedule I or II controlled substance as a second

- degree felony, while classifying the more culpable offenses of Automobile Homicide and DUI With Serious Injury as third

degree felonies. We agree with the State that the legislature has a reasonable objective for distinguishing between prescription and nonprescription users of controlled substances. However, there does not appear to be any rational basis for punishing individuals who have “ any measurable amount ” of controlled substance in their bodies more harshly than individuals who have an incapacitating amount o f the substance in their bodies.State v. Ainsworth

20130924

- CA 5 2016 UT App 2 ¶10 The uniform operation of laws provision mand ates that “*a+ ll laws of a general nature shall have uniform operation.” Utah Const. art. I, § 24. This provision is an “analogue to the federal due process guarantee,” Woo d v. University of Utah Med. Ctr. , 2002 UT 134, ¶ 33, 67 P.3d 436, but may, “in some circumstances, [be] more rigorous than the standard applied under the federal constitution,” Gallivan v. Walker , 2002 UT 89, ¶ 33, 54 P.3d 1069 (citation and internal quotation marks omitted)

. In analyzing the constitutionality of a statutory scheme under the unifo rm operation of laws provision[] we engage in a three

- part inquiry. First, we determine what, if any , classification is created under the statute. Second, we inquire into whether the classification imposes on similarly situated persons disparate treatment. Finally, we analyze the scheme to determine if the legislature had any reasonable objective that warrants the disparity.
State v. Drej , 2010 UT 35, ¶ 34, 233 P.3d 476 (citations and internal quotation marks omitted). To determine whether the legislature had a rea sonable objective to warrant a disparity, we must consider “(1) whether t he classification is reasonable, (2) whether the objectives of the legislative action are legitimate, and (3) whether there is a reasona ble relationship between the classification and the legislative purpose.” State v. Robinson , 2011 UT 30, ¶ 22, 254 P.3d 183. “Broad deference is given to the legislature when assessing the reasonableness of its classifications and their relationship to leg itimate legislative purposes.” Id. ¶ 23 (citation and internal quotation marks omitted).

¶11 Ainsworth first challenges the Measurable Amount Statute’s distinction betwee n those who use controlled substa nces without a prescription and those who use them withState v. Ainsworth

20130924

- CA 6 2016 UT App 2 a prescription. Those w ho have a prescription for a controlled substance may be charged only under the Automobile Homicide Statute or the DUI With Serious Injury Statute, not the Measurable Amount Statute. See Utah Code Ann. § 58

- 37

- 8(2)(a)( i), (g)(i) (exem pting from the Measurable Amount S tatute those who have a valid prescription). In other words, un like nonprescription users, prescription users can be charged with no more than a third

- degree felony 2 and can be convicted only if the State demonstrate s that they were into xicated to a degree that rendered them incapable of safely operating a motor vehicle. See id. § 41

- 6a

- 503(2)(a) (2014); id. § 76

- 5

- 207(2)(a) (2012). Thus, the Measurable Amount Statute creates a classification. B ecause the same drugs may be used by both types of users and the existence of a prescription presumably does not alter the effect of the drug,

we con clude that prescription and non prescription users of controlled substances are similarly situated.

¶12 However, the classification does not violate the uniform operation of laws provision, because the legisl ature had a reasonable basis for making the classification. Ainsworth asserts that the distinction between prescription and nonprescription users of methamphetamine is not supported by a re asonable legislative objective “because the harm presented by a person driving with methamphetamine in his system is the same regardless of whether he has a prescription

. ” Ainsworth’s assertion rests on the mistaken assumption that the only rational objective the legislature could have in distinguishing between prescription and nonprescription users of controlled substances

2 . Automobile homicide may be a second

- degree felony if the defendant was criminally negligent or had a previous DUI

related conviction, see Utah Code Ann. § 76

- 5

- 207(2)(b), (3) (LexisNexis 2012), but Ainsworth was not charged with either of tho se variations of automobile homicide, and they are not at issue in this case.State v. Ainsworth

20130924

- CA 7 2016 UT App 2 is the relative danger they pose when driving. But the legislature also has a legitimate interest in regulating the use of controlled substances due to their high potential for abuse. Those who use such substances pursuant to a valid prescription are subject to controls and safeguards, including , among oth er things, limits on their dosages and regulation of manufacturing consistency and quality , while those who obtain controlled substances illegally ar e not subject to any such constraints

. Thus, the legislature has an interest in deterring the illegal use o f control led subst ances. The legislature has no concomitant interest in deterring the legal use of prescribed medications so long as that use does not render the patient incapable of safely operating a motor vehicle. Charging nonprescription controlled

sub stance users that hav e “any measurable amount” of such substances in their bodies , while charging prescription users only when they are demonstrably unsafe to drive, is rationally related to the reasonable objectives of the legislature.

¶13 Ainsworth next chal lenges the Measurable Amount Statute’s distinction between those whose bodies contain “any measurable amount of a controlled substance,” Utah Code Ann. § 58

- 37

- 8(g) (i) (LexisNexis Supp. 2015 ), and those who are under the influence of any controlled substan ce “to a degree that renders the person incapable of safely operating a vehicle,” see id. § 41

- 6a

- 502(1)(b) (2014); id. § 76

- 5

- 207(2)(a)(ii) (2012). He asserts that , as applied to users of Schedule I and II controlled substances, 3 this distinction is not r elated to a reasonable

3 . Although users of other types of controlled substances are also subject to this classification, the degree of crime they can be charged with is lesser or equal to what they would be charged with under the Automobile Homicide Statute or the DUI With Serious Injury Statute. Because Ainsworth’s argument concerning this classification is premised on the fact that the Measurable Amount Statute imposes a greater penalty for a (continued...)State v. Ainsworth

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- CA 8 2016 UT App 2 legislative objective, because it punishes less culpable offenders with a significantly higher level of punishment

.
¶14 The State asserts that no classification is created by this provision of the Measurable Amount Statute because the Au tomobile Homicide Statu t e and the DUI With Serious Injury Statute govern only drivers who are under the influence of legal intoxicants ( alcohol or prescription drugs ) , not those who are under the influe nce of illegal intoxicants (non prescribed controlled substances)

. Thus, according to the State, regardless of the degree of intoxication, negligently causing injury or death of another while driving with any measurable amount of a controlled substance for which the user does not have a p rescription should be prosecuted under the Meas urable Amount Statute, not the Automobile H omicide Statute or the DU I With Serious Injury Statute.

¶15 However, t he plain langua ge of the Measurable Amount, Automobile Homicide, and DUI With Serious Injury S tatutes belies the State’s interpretation. Both the Automobile Homicide Statute and the DUI With Serious Injury S tatute apply to individuals under the influence of “any drug.” See Utah Code Ann. § 41

- 6a

- 502(1)(b) (LexisNexis 2014) ; id. § 76

- 5

- 207(2)(a)(ii) (2012) . Both statutes incl ude controlled substances within the definition of “drug.” Id. § 41

- 6a

- 501 (1) (c)(i) (2014) (defining

(...continued) lesse r crime, it challenges the constitutionality of the statute only as applied to Schedule I and II users. In requesting that his charges be reduced to third

- degree felonies, Ainsworth’s argument presumes that a charge equal to what a defendant could have bee n charged with under the Automobile Homicide Statute or the DUI With Serious Injury Statute would not violate the uniform operation of laws provision, so we assume, without deciding, that this is the case.State v. Ainsworth

20130924

- CA 9 2016 UT App 2 “drug” for purposes of the DUI With Serious Injury Statute to include controlled substances) ; id. § 76

- 5

- 207 (1) (a)(i) (2012) (defining “drug” for purposes of the Automobile Homicide Statute to include controlled substances); id. § 58

- 37

- 2 (1)(f) (Supp. 2015) (defining “controlled substance” to include substances list ed in Schedules I, II, III, IV, or V of the Utah Controlled Substances Act and the federal Con trolled Substances Act ). Neither statute distinguishes between drugs used in accordance with a v alid prescription and drugs used illegally. Thus, by their plain langua ge, these statutes apply to the use of both prescription and nonprescription controlled s ubstances

. Furthermore, the Measurable Amount Statute implicitl y identifies the Automobile Homicide Statute as defining an offense that could apply to users of illegal drugs b y specifically distinguishing it from the Measurable Amount Statute , stating
t hat “*a+ person is subject to the penalties” of the Measurable Amount Statute when the person violates the statute “ in an offense not amounting to a violation of [ the Automobile Homicide S tatute +.” Id. § 58

- 37

- 8(g) (Supp. 2015 ) (emphasis added). This indic ates that the legislature anticipated that the Automobile Homicide Statute would apply to nonprescription users of controlled substances under certain circumstances.

¶16 Thus, we agree with Ainsworth that the three statutes
create a classification distinguishi ng between similarly situated persons

— users of non prescribed controlled substances who cause serious injury or death by negligently operating a motor vehicle

— based on their degree of intoxication: T hose who are intoxicated by legal or illegal substances to a degree that they are incapable of safely operating a vehicle are to be prosecuted

u nder the Automobile Homicide Statute or the DUI With Serious Injury S tatute . On the other hand, those who have consumed illegal substances to a lesser degree, but still h ave a measurabl e amount in their bodies, are to be prosecuted under the Measurable Amount Statute . Because a conviction under the Measur able Amount Statute is a second

- degree felony when theState v. Ainsworth

20130924

- CA 10 2016 UT App 2 individual has a measurable amount of a Schedule I or II controll ed substance in his or her body , while convictions under the other two statutes are third

- degree felonies regardless of the type of controlled substance used, unimpaired users of Schedule I and II controlled substances are ultimately subject to a greater charge for what is otherwise defined to be a lesser crime.

¶17 There does not appear to be any rat ional basis for charging users of non prescribed Schedule I or II controlled substances who have a measurable amount of controlled substance in their body, but not enough to render them incapable of safely operating a motor vehicle, with a higher

degree crime than users of non prescribed Schedule I or II controlled substances who have so much controlled substance in their body that they are demonstrably unsafe to ope rate a veh icle. Thus, we agree with Ainsworth that the second

- degree designation in subsection (2)(h)(i) in the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution.

¶18 When a statutory provision is determined to be unconstitutional, the remainder of the statute will nevertheless be allowed to stand if it “is operable and still furthers the intended legislative purpose.” State v. Lopes , 199 9 UT 24, ¶ 19 , 980 P.2d 191. The legislature has determined that “*i+f any provision of [the Measurable Amount Statute], or the application of any provision to any person or circumstances, is held invalid, the remainder of [the Measurable Amount Statute] shall be given effect without the invalid provision or application.” Utah Co de Ann. § 58

- 37

- 8(17) (LexisNexis Supp. 2015). Thus, striking the second

- degree designation in subsection (2)(h)(i) of the Measurable Amount Statute does not undermine the legislative purpose of the statute. The only question remaining, then, is whether su bsection (2)(h)(i) can rem ain operable without its second

- degree designation. “An offense designated as a felony either in [the criminal code] or in another law, withoutState v. Ainsworth

20130924

- CA 11 2016 UT App 2 specification as to punishment or category, is a felony of the third degree.” Id. § 76

- 3

- 103 (2012). Therefore , subsection (2)(h)(i) can remain operable as a th ird

- degree felony. Accordingly, we vacate Ainsworth’s convictions and remand wi th instructions for the district court to re

- enter them as third

- degree felonies.

II. Consecutive Sentenci ng

¶19 Because we must vacate Ainsworth’s convic tions and remand for the district court to adjust the degree of the convictions, w hich will require that the district court also resentence him, we need not address Ain sworth’s argument that the district court er red in imposing consecutive sentences. Nevertheless, as this issue has been fully briefed and is likely to arise on remand, we elect to address it. See S tate v. James , 819 P.2d 781, 795 (Utah 1991).

¶20 Ainsworth asserts that the district court exceeded its discretion in imposing consecutive sentences because it failed to adequately consider his history, character , and rehabilitative needs. See Utah Code Ann. § 76

- 3

- 401(2) (LexisNexis 2012)

. Although “*a+ court exceeds its discretion if it . . . fails to consider all legally relevant factors,” State v. Epling , 2011 UT App 229, ¶ 8, 262 P.3d 440, “*i+t is the defendant’s burden to demonstrate that the trial court failed to properly co nsider legally relevant factors,” State v. Bunker , 2015 UT App 255, ¶ 3, 361 P.3d 155. A defendant cannot meet this burden by merely pointing to . . . the existence of mitigating circumstances.” Id. “If the record shows that the trial court has reviewed information regarding the relevant legal factors, we can inf er that the trial court adequately considered those factors.” Id.

¶21 Ainsworth argues that the court failed to adequately consider the fact that his offenses arose out of a single criminal

e pisode resulting from negligent rather than intentional behavior; tha t despite not having been amenable to rehabilitation in the past, he had expressed genuine remorse andState v. Ainsworth

20130924

- CA 12 2016 UT App 2 a desire to accept responsibility for his actions; that h e has participated in substance

- abus e classes while in jail and has a newfound desire to partici pate in substance

- abuse treatment; that he is employed; and that he has strong emotional health and family connections. While these factors could have supported a decision to impose concurrent sentences, they do not mandate such an outcome and we see no in dication that the district court failed to consider them. On the contrary, t he district court indicated that it had “carefully considered *Ainsworth’s+ history and rehabilitative n eeds in reaching [its] decision ” but concluded that the “nature, circumstances and gravity of the offense[,]

. . . as well *as+ the number of victims” made

conse cutive sentencing appropriate. “The fact that the trial court assessed the relevant factors differently than [Ainsworth] would have liked does not indicate that it exceeded its discretion.” See Epling , 2011 UT App 229, ¶ 22.

CONCLUSION

¶22 We agree with Ainsworth that subsection (2)(h)(i) of the Measurable Amount Statute violates the uniform operation of laws provision of the Utah Constitution. Thus, we vacate Ains wo rth’s convictions and remand with instructions for the district court to enter his convictions as third

- degree felonies and to resentence him accordingly. 4

4 . In reducing the degree of Ainsworth’s convictio ns, as we believe the law requires, we by no means wish to discount the tragic losses suffered by the victims of Ainsworth’s crimes.