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Man with 9 DUIs appeals his latest

His lawyer contends police didn't have cause for traffic stop

Published: Sunday, Nov. 1 2009 12:00 a.m. MDT

A man with nine DUI convictions, including one fatal accident, is appealing the latest jury verdict because he says the arresting officer did not have reasonable suspicion to pull him over.

Robert Van Dyke is currently serving a five-year prison term for this case, has been denied parole and is scheduled to be released in 2012.

Van Dyke's defense attorney, Sheldon Carter, told the Utah Court of Appeals on Tuesday that the police erred in stopping Van Dyke because there was no basis for any reasonable suspicion that Van Dyke was driving drunk.

Carter said this all began in 2007 when a couple called 911 saying they had seen Van Dyke in a Spanish Fork park after a baseball game had been rescheduled. They thought he seemed to be drunk, and they saw him drive away. The woman said Van Dyke smelled of alcohol, and the couple observed Van Dyke have what they considered an "odd" conversation with their young son in the parking lot before Van Dyke left.

The police officer who responded to a "possible DUI" followed Van Dyke for nine or 10 blocks and noted no traffic law violations but did see Van Dyke's vehicle weaving within his lane four times. As a result, the police officer stopped Van Dyke, who refused to take part in field sobriety tests or blow into a Breathalyzer-type of device. The officer also testified later that Van Dyke's speech was slurred and he smelled of alcohol.

Carter argued there are problems with the observations made by the parents who called 911 since they are lay people who did not know what Van Dyke's situation was.

Just because someone else smells of alcohol and an adult has a conversation with a child in Utah County — which has plenty of children who interact with adults — does not mean that person is impaired and should not drive, Carter said.

Carter also said it's not unusual for all drivers to veer somewhat within their own lanes.

"We saw nothing to justify a traffic stop," Carter said.

But assistant attorney general Ryan Tenney said the police officer acted correctly when he stopped Van Dyke — the 911 call from citizens who had no personal bias against Van Dyke in itself provided reasonable suspicion for a traffic stop. Beyond that, the police officer's observations of Van Dyke's vehicle weaving four times, based on the officer's training and experience, also provide sufficient suspicion to warrant a stop, he said.

Even if there were innocent explanations for everything, that does not erase or undermine the concept of reasonable suspicion in this case, Tenney argued.

The appeals court took the case under advisement and will issue a ruling in the future.

In this case, a Utah County jury in 2008 convicted Van Dyke of DUI with prior convictions, a third-degree felony, and he was sentenced to zero to five years in prison.

In another case, Van Dyke was sentenced to prison in 2001 for driving drunk and killing Michelle Bradley, 34, who was driving in West Valley City on Jan. 28, 2000. Her daughter, Amber, 12, suffered injuries including the loss of vision in her right eye and a ruined sense of smell. The crash injured Bradley's sister-in-law, Elizabeth Dresen, who was nine months pregnant at the time. The Bradleys' black Lab also was killed in the accident.

Van Dyke was released from prison in January 2006 in the Bradley case, according to the Utah Attorney General's Office.

e-mail: lindat@desnews.com

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