PROVO — An attorney says that a police officer who arrested his client on a DUI charge shouldn't be able to tell a jury that his client was too impaired to drive.

Instead, attorney Shelden Carter believes the officer should only be permitted to say what he observed — that driver Robert VanDyke swerved slightly within his lane of travel and that the officer smelled alcohol on VanDyke.

Anything more than that is allowing the officer to "supplant his opinion for that of the jury's," Carter said. "The decision of guilt or innocent is the jury's."

However, prosecutor Craig Johnson believes he should have more leeway in this area.

He wants — during the trial on April 7 and 8 — to be able to ask Spanish Fork police officer Matthew Johnson what allegations he booked VanDyke into jail on: driving under the influence.

More stipulations for the upcoming trial include that the jury will not be told that VanDyke was convicted of automobile homicide after he crashed into a woman, killing her and injuring her daughter in a 2000 crash in West Valley.

The jury also won't be told that VanDyke has been charged five times in 10 years with DUI or alcohol-related reckless driving.

And they also won't be told that the night he was pulled over in this most recent case, he was driving on an alcohol-restricted license.

"The judge felt it would be too prejudicial to have evidence come in (about) driving on an alcohol-restricted license," Johnson said after Judge Claudia Laycock's decision Wednesday at a pre-trial conference. "That fact alone would lead a reasonable juror to assume various reasons why that would be, (one of which being) prior DUIs and that would be unfairly prejudicial to the defendant. The jury needs to try this case on its own facts," Laycock said.

Johnson will be allowed to tell the jury that VanDyke refused to take several field sobriety tests. And after the trial on the DUI case, the state will bring up all of VanDyke's prior incidents before the court.

VanDyke was arrested Sept. 25 after residents called police because they thought he was impaired and shouldn't be driving, based on their interactions at a sports complex in Spanish Fork.

Spanish Fork police officer Matthew Johnson testified that he was told by dispatch that there was a potential DUI heading south on Main Street in Spanish Fork.

After following VanDyke for nearly nine blocks, Matthew Johnson watched as VanDyke pulled over on his own. The officer then pulled in behind him.

Matthew Johnson said he had noticed VanDyke swerving several times within his lane of travel.

Carter argues that his client was arrested despite having never committed an actual traffic violation.

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