Robert J. VanDyke

PROVO — A man convicted of driving under the influence and facing more prison time is asking the judge to overturn the jury's verdict, arguing a lack of evidence.

Robert Kent VanDyke, 43, was convicted by a jury in April of DUI after being arrested in September by Spanish Fork police on a DUI charge.

It was VanDyke's seventh DUI conviction and the fourth since 2001, making it a felony. He also served nearly five years in prison for an automobile homicide conviction from a 2000 West Valley accident.

VanDyke was scheduled to be sentenced Wednesday morning in 4th District Court. However, his attorney, Shelden Carter, filed a motion arguing that the jury's verdict should be overturned.

"There was not sufficient evidence to convict on the element of the offense," Carter said, arguing it was not proven that VanDyke was unable to operate a vehicle safely.

The Spanish Fork police officer who made the arrest testified that VanDyke never broke a traffic law, he only swerved slightly in his own lane of travel.

VanDyke pulled to the side of the road on his own, then the officer pulled in behind him and began questioning him about that night, eventually placing him under arrest.

Prosecutor Craig Johnson said he believes that the jury made the right decision based on clear evidence of intoxication.

Several people who had been at a Spanish Fork sports park testified that VanDyke not only smelled of alcohol but approached their young son to strike up a conversation, which struck them as strange, Johnson said.

But those actions are not illegal, Carter argues, and were not enough for police to stop VanDyke for a DUI. That is just one issue that Carter wants the Utah Court of Appeals to consider as part of another motion he filed.

He also argues the jury shouldn't have been told that VanDyke refused to take field sobriety tests and is concerned that a certain juror was unfairly dismissed because he may have been too pro-VanDyke.

Johnson said he asked for the man to be excused because the juror knew one of the state's witnesses and would have been unable to be fair and impartial.

If Laycock refuses to overrule the jury verdict during the next hearing on June 4, she said she will sentence VanDyke that day. Then, Carter's motion with issues for the Court of Appeals can be heard.

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