Opinion
Case No. 20080754-CA.
Filed April 2, 2009. Not For Official Publication
Appeal from the Second District, Layton Department, 085603119 The Honorable David Connors.
Ronald Charles Barton, Kaysville, Appellant Pro Se.
Clinton R. Drake, Layton, for Appellee.
Before Judges Thorne, Bench, and McHugh.
MEMORANDUM DECISION
Defendant Ronald Charles Barton appeals his conviction of restricted use of a closed highway, a class B misdemeanor. See Utah Code Ann. § 72-6-114 (Supp. 2008).
Utah Code section 72-6-114(3) states that "[a] person who willfully fails to observe any barricade, warning light, sign, or flagman, used in accordance with this section, is guilty of a class B misdemeanor."Id. By referencing Utah Code section 41-6a-301, section 72-6-114 requires a traffic control device closing a road to "where possible, conform to the system set forth in the most recent edition of the `Manual on Uniform Traffic Control Devices for Streets and Highways.'" Utah Code Ann. § 41-6a-301(2)(b) (Supp. 2008). In addition, traffic control devices must be "in proper position and sufficiently legible to be seen by an ordinarily observant person." Utah Code Ann. § 41-6a-304(2)(a) (2005).
On April 18, 2008, Barton was driving on Gentile Street in Layton, Utah. Portions of Gentile Street were under construction. Barricades were posted with signs stating "Road Closed — Local Traffic Only," which restricted travel on Gentile Street between 3200 West and 2200 West. Residents living within the closed portion of the road were issued permits by Layton City. Barton admits that he drove through the barricade at 3200 West and continued traveling eastbound on Gentile Street. A Layton City police officer observed Barton driving within the closed portion of Gentile Street without a permit. The officer stopped Barton, then issued him a citation for driving on a closed road after Barton stated that he was traveling east on Gentile Street to reach Angel Street. Angel Street was not within the closed area and was roughly one mile outside the closed area. The Layton City Traffic Engineer testified that the barriers and notices placed at the point of the road closure conformed to the Manual on Uniform Traffic Control Devices for Streets and Highways.
Barton first claims that Utah Code section 72-6-114 is unconstitutionally vague. In considering a challenge to the constitutionality of a statute, we presume "that the statute is valid, and we resolve any reasonable doubts in favor of constitutionality."State v. Morrison, 2001 UT 73, ¶ 5, 31 P.3d 547; see also Goodman v. West Jordan, 2006 UT 27, ¶ 9, 135 P.3d 874. Barton states on appeal that he "does not contend that [section] 72-6-114 . . . is unconstitutionally vague but does contend that the phrase `Local Traffic Only' when used in conjunction with a road closed sign is unconstitutionally vague and allows for the unlawful discretionary, moment-to-moment interpretation and enforcement of the law by law enforcement officers." As such, he claims that relying upon an officer's interpretation of "local traffic only" leads to "arbitrary and discriminatory enforcement." Even if considered as an argument that the statute is vague as applied, the claim must fail. First, "local traffic only" is not a phrase used in the statute. Second, the testimony of the traffic engineer that the barriers and notices complied with the "Manual on Uniform Traffic Control Devices for Streets and Highways" was not refuted. Finally, the district court correctly construed "local traffic only" according to its common usage. Although motorists living in the closed area or visiting a residence or business in that area would be allowed to proceed without a citation, Barton admitted that he was doing neither and was traveling on the closed road to reach a destination over a mile away.
Barton next claims that relying upon the absence of the permit issued to local residents was insufficient to support a reasonable suspicion to support the stop. Barton did not make a pretrial motion to suppress in compliance with rule 12(c)(1) of the Utah Rules of Criminal Procedure.See generally Utah R. Crim. P. 12(c)(1)(B) (requiring a motion to suppress evidence to be filed at least five days prior to trial). Nevertheless, the district court considered Barton's argument at trial and ruled that the officer had a reasonable articulable suspicion to support the stop. "A law enforcement officer may stop a vehicle if the officer has a reasonable suspicion the vehicle is being operated in violation of the law." State v. Galvan, 2001 UT App 329, ¶ 11, 37 P.3d 1197. Permits had been issued to drivers living in the closed portion of the road. Barricades advised drivers the road was closed to all but local traffic and signs indicated a detour. The officer observed Barton driving in the closed portion of the road without a permit. The district court did not err in ruling that the officer had a reasonable suspicion that Barton was operating his vehicle on a closed road in violation of the law and the stop was valid.
Barton attempts to characterize the traffic stop as part of an "administrative traffic checkpoint." Utah Code section 77-23-102 defines such a checkpoint as a "roadblock procedure where enforcement officers stop all, or a designated sequence of, motor vehicles traveling on highways and roads and subject those vehicle to inspection or testing and the drivers or occupants to questioning or the production of documents." Utah Code Ann. § 77-23-102 (2008). Layton City police officers were not conducting an administrative checkpoint.
Barton's claim under State v. Shondel, 435 P.2d 146 (Utah 1969), is also without merit. Shondel precludes the State from prosecuting an individual for a greater offense when "two statutes are wholly duplicative as to the elements of the crime." State v. Bryan, 709 P.2d 257, 263 (Utah 1985). "The Shondel doctrine limits its inquiry to the elements of the criminal statutes which the defendant claims overlap and applies only when two statutes are wholly duplicative as to the elements of the crime." State v. Williams, 2007 UT 98, ¶ 14, 175 P.3d 1029. Once a court determines that the elements of two statutes do not "overlap fully," the Shondel inquiry is complete. See id. ¶ 9. Here, Layton City charged Barton with driving on a closed road, a class B misdemeanor. Prior to trial, Layton City offered to amend the charge in exchange for a guilty plea to the lesser offense of failure to obey a traffic control device. While the statute proscribing driving on a closed road specifically pertains to driving on a closed highway, the statute prohibiting failure to obey a traffic control device does not contain that element. The misdemeanor offense requires a prosecuting entity to prove that the highway was lawfully closed by the required barriers and notices. However, failure to obey a traffic device presumes that the traffic control device complies with all legal requirements unless a defendant proves otherwise. Because the misdemeanor offense and lesser offense are not wholly duplicative as to their elements, the Shondel inquiry is complete, and Barton's claim is without merit.
Accordingly, we affirm.
William A. Thorne Jr., Associate Presiding Judge.
Russell W. Bench, Judge.
Carolyn B. McHugh, Judge.