UTAH COUNTY -- A Utah County man convicted for driving under the influence nine times is hoping to have his latest conviction dismissed or a new trial ordered.
Robert Van Dyke's latest conviction stems from a 911 call made on Oct. 27, 2007, where people in a Spanish Fork park called to say they smelled alcohol on Van Dyke, he had a strange conversation with a child and then got in a car and drove off.
Dispatchers sent an officer to investigate a possible DUI. The officer followed Van Dyke saying he weaved within his lane four times; three times touching his wheel to the center line. The officer then made a traffic stop, and Van Dyke refused to take sobriety tests invoking his Fifth Amendment right.
In the Utah Court of Appeals Van Dyke's attorney, Shelden Carter, argued the traffic stop should have never taken place because weaving within your lane is not a traffic violation.
"I would suggest if not all, 99 percent of the folks who drive out there are weaving within their lane to some degree," Carter said.
Carter said if the court agreed with that argument, the conviction should be dismissed. He also argued the officer compelled Van Dyke to do field sobriety tests, which should not have happened. He said in that case, the court should order a new trial if the conviction isn't dismissed.
Utah Assistant Attorney General Ryan Tenney countered the argument, saying the officer had plenty of reason to stop Van Dyke and to investigate what he thought was a crime being committed.
"First of all, a concerned citizen who had no source of bias encountered him in a parking lot and said he smelled of alcohol, was acting erratically and appeared to be intoxicated," said Tenney. He added that the 911 call, together with the weaving, was all the officer needed to make the stop.
Both sides are now waiting to hear back from the court on its decision.
Among Van Dyke's past DUI convictions includes a crash he caused that ended with the death of another driver Michelle Bradley. Van Dyke served five years for that conviction, and his latest arrest occurred three months after his parole was terminated.