author: DURHAM, Chief Justice:

text:
    2003 UT 21
    Robert E. WILCOX, Utah Insurance Commissioner, as Liquidator of Southern American Insurance Company, Plaintiff and Appellant, v. CSX CORPORATION, Defendant and Appellee.
    No. 20010411.
    Supreme Court of Utah.
    May 9, 2003.

      Douglas M. Monson, Brent D. Wride, Elaine A. Monson, Salt Lake City, for plaintiff.
    E. Seott Savage, Samuel O. Gaufin, Eric K. Schnibbe, Salt Lake City, for defendant.
   DURHAM, Chief Justice:

INTRODUCTION

T1 This case addresses two issues of first impression for this court. The first issue is whether federal bankruptcy law should be used to interpret the voidable preference provisions of Utah Code section 81A-27-821 (2001). Appellant, Wilcox, argues that because there is no prior Utah case law addressing section 81A-27-321, 11 U.S.C. § 547(c) (1988), a "comparable" provision of the Federal Bankruptcy code, should guide this court's statutory interpretation. The second issue is whether appellee, CSX Corporation's, actions satisfy either of the affirmative defenses found in section 81A-27-821 of the Utah Code, namely, the new and contemporaneous consideration defense found in section 81A-27-321(4)(a) and the ordinary course of business defense found in section 31A-27-321(4)(b). We hold that it is proper for this court to rely on 11 U.S.C. § 547(c) of the Federal Bankruptcy code for guidance in interpreting Utah Code section 31A-27-321 and that neither affirmative defense found in section 31A-27-821 has been satisfied. We therefore reverse the decision of the trial court.

BACKGROUND

T2 The facts in this case are not in dispute. Southern American Insurance Company (SAIC) was incorporated and began providing insurance coverage in 1984. Between July 14, 1979 and July 31, 1982, SAIC sold three insurance policies to CSX Corporation (CSX) and its predecessors. These policies provided CSX with liability coverage for all of its asbestos-related claims. On or about October 3, 1985, CSX's predecessors filed two separate lawsuits against SAIC. On or about January 11, 1990, a predecessor of CSX filed a third lawsuit against SAIC. Each of these three claims against SAIC (the asbestos coverage litigation) involved disputes regarding the extent to which SAIC would cover CSX's asbestos liability.

T3 In March of 1991, SAIC and CSX commenced settlement negotiations for the asbestos coverage litigation. On or about October 14, 1991, the parties cireulated a settlement letter setting forth the settlement terms and conditions to which SAIC and CSX had agreed. Shortly thereafter, the parties executed the Settlement Agreement (Agreement), with CSX signing on October 17, 1991 and SAIC signing on October 25, 1991. The Agreement obligated SAIC to make three payments totaling $308,000 to CSX in exchange for CSX's agreement to release SAIC from all past, present, and future claims arising from asbestos litigation.

{4 In accordance with the Agreement, SAIC made the following payments to CSX: $102,667 on October 28, 1991, $102,667 on November 26, 1991, and $102,666 on January 2, 1992. Subsequently, on March 25, 1992, the liquidator successfully filed a petition for SAIC's liquidation. The next day, March 26, 1992, the liquidation court issued a liquidation order against SAIC, and on April 10, 1992, the liquidation court declared SAIC insolvent pursuant to sections 81A-1-801(89) and 31A-27-310(4) of the Utah Code Approximately two years later, on March 25, 1994, the liquidator filed the present action against CSX, claiming that the payments made by SAIC to CSX pursuant to the Agreement were voidable preferences under Utah Code sections 31A-27-321(1)(b) and (c).

PROCEDURAL HISTORY

T5 On February 2, 2000, CSX moved for summary judgment, arguing that the payments were (1) not voidable preferences as a matter of law because the payments were for new and contemporaneous consideration, (2) made in the ordinary course of SAIC's business and within forty-five days of the date the payments were legally obligated to be paid, and (8) made in exchange for the relinquishment of all past, present, and future asbestos-related claims. On March 30, 2000, the liquidator filed its opposition to CSX's motion and submitted its own motion for summary judgment, arguing that all the elements of a preferential transfer under Utah Code sections $1A-27-321(1)(b) and (c) were met as a matter of law. Oral argument on the cross motion was heard on March 5, 2001, and on March 12, 2001, the district court issued a memorandum decision, ruling that since "the Settlement Agreement between SAIC and CSX released CSX's existing and future claims[,] ... the payments received by CSX were for new and contemporaneous consideration." The district court entered an order on April 3, 2001 granting CSX's motion for summary judgment and denying the liquidator's motion. The liquidator appealed.

STANDARD OF REVIEW.

16 " 'Generally, we review a trial court's legal conclusions for correctness, according the trial court no particular deference." Wilson Supply, Inc. v. Fradan Mfg. Corp., 2002 UT 94, ¶11, 54 P.3d 1177, 1181 (quoting Orton v. Carter, 970 P.2d 1254, 1256 (Utah 1998)). A determination of whether any or all of SAIC's payments to CSX constitute a voidable preference under the meaning of section 81A-27-321 is a matter of law.

ANALYSIS

T7 The applicable provisions of Utah Code section 314A-27-821 at issue in this case are as follows:

(1)(a) [A] "preference" means a transfer of any of the property of an insurer to or for the benefit of a creditor, for or on account of an antecedent debt, made or allowed by the insurer within one year before the filing of a successful petition for rehabilitation or liquidation....
(b) Any preference may be avoided by the rehabilitator or liquidator, if;
(i) the insurer was insolvent at the time of the transfer; [or]
() the transfer was made within four months before the filing of the petition[.]

Section 31A-27-821 allows a liquidator to recover certain preferential payments made to an insurance company's creditors prior to liquidation. Prohibiting preferential payments to creditors prevents an insurer from paying off its favorite creditors on the eve of liquidation. Pine Top Ins. Co. v. Bank of Am. Nat'l Trust & Sov., 969 F.2d 821, 324 (7th Cir.1992) (referring to the policy behind a federal bankruptcy statute to interpret an Illinois state insurance statute). Such a practice inevitably diminishes the value of the insurer's estate and leads to an inequitable distribution to any remaining similarly situated creditors. Futoran v. Rush (In re Futoran), 476 F.3d 265, 267 (Oth Cir.1996); Vieira v. Anna Natl Bank (In re Messo-more), 250 B.R. 913, 916 (Bankr.8.D.111.2000). A voidable preference may nevertheless be non-preferential if one of the affirmative defenses found in section 31A-27-821 is established. CSX alleges, and has the burden of proving, the following section 31A-27-821 affirmative defenses at issue in this case:

(4) The receiver may not avoid a transfer of property under this section for or because of:
(a) a new and contemporaneous consideration; [or]
(b) the payment, within 45 days after a debt is incurred, of a debt incurred in the ordinary course of the business of the insurer and according to normal business terms[.]

No prior Utah case law has interpreted these two statutory defenses. We therefore discuss the relevance of using a similar provision of the Federal Bankruptey code, 11 U.S.C. § 547(c), in the interpretation of the new and contemporaneous consideration defense and the ordinary course of business defense found in Utah Code section 31¥A-27-821(4).

I. RELEVANCE OF 11 U.S.C. § 547(c) TO UTAH CODE SECTION 31A, 27-321

T8 "When faced with a question of statutory construction, 'we seek to give effect to the intent of the legislature in light of the purpose the act was meant to achieve." State v. Ostler, 2001 UT 68, 17, 31 P.3d 528 (quoting Gutierrez v. Medley, 972 P.2d 918, 915 (Utah 1998)). We first interpret the statute according to its plain language; nevertheless, " '[iJf we find the provision ambiguous ... we then seek guidance from the legislative history and relevant policy considerations.'" Ostler, 2001 UT 68 at 17, 31 P.3d 528 (quoting In re Worthen, 926 P.2d 853, 866 (Utah 1996)); see also Biddle v. Washington Terrace City, 1999 UT 110, 114, 9983 P.2d 875; Schurts v. BMW of N. Am., Inc., 814 P.2d 1108, 1112 (Utah 1991). We rely upon these rules of statutory interpretation in deciding whether to use the legislative history and policy considerations behind 11 U.S.C. § 547(c) for guidance in interpreting the Utah insurance liquidation statute at issue.

1 9 Courts have consistently explained that [tlhe purpose of 11 U.S.C. § 547 is to 'accomplish proportionate distribution of the debtor's assets among its creditors, and therefore to prevent a transfer to one creditor that would diminish the estate of the debtor that otherwise would be available for distribution to all" " In re Futoran, 76 F.3d at 267 (quoting In re Nucorp Energy, Inc., 902 F.2d 729, 788 (9th Cir.1990)); see also In re Messamore, 250 B.R. at 916 (stating that a preferential transfer "mak[es] it impossible for similarly situated creditors to obtain as great a percentage as the favored creditor"); Hays v. DMAC Inv., Inc. (In re RDM Sports Group, Inc.), 250 BR. 805, 811 (Bankr. N.D.G2a.2000) (citing H.R.Rep. No. 95 595 at 177-78 (1978)) (noting that "equality of distribution" is a "fundamental tenet[ 1" of bank-ruptey law and that "the central purpose of § 547 is to discourage creditors 'from racing to the courthouse to dismember the debtor during his slide into bankruptey' ") (citation omitted); Miniscribe Corp. v. Keymarc, Inc. (In re Miniscribe Corp.), 128 BR. 86, 90 (Bankr.D.Colo.1991) (stating that "[the purpose of the preference statute is to discourage creditors from engaging in unusual collection practices which help dismember the debtor and hasten its slide into bankruptcy").

€ 10 Section 547 of the Federal Bankruptcy code provides that a trustee in bankruptcy

(b) ... may avoid any transfer of an interest of the debtor in property-
(1) to or for the benefit of a ereditor;
(2) for or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) made while the debtor was insolvent;
(4) made-
(A) on or within 90 days before the date of the filing of the petition; or
(B) between ninety days and one year before the date of the filing of the petition, if such creditor at the time of such transfer was an insider; and
(5) that enables such creditor to receive more than such creditor would receive if-
(A) the case were ... under chapter 7 of this title;
(B) the transfer had not been made; and
(C) such ereditor received payment of such debt to the extent provided by the provisions of this title.

However, sections 547(c)(1) and (2) of the Federal Bankruptey code also provide that a debtor's transfer, which satisfies the above criteria, may nevertheless be deemed non-preferential if the transfer was

(1)(A) intended by the debtor and the . creditor to ... be a contemporaneous exchange for new value given to the debtor; and
(1)(B) in fact a substantially contemporaneous exchange; ... [or]
(2)(A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(2)(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(2)(C) made according to ordinary business terms[.]

[11 SAIC contends that "[blecause the policy underlying the preference doctrine under state insurance Hquidation law is the same as that under federal bankruptcy law," this court should use 11 U.S.C. § 547(c) of the Federal Bankruptcy code as guidance in interpreting the affirmative defenses found in Utah Code section 31A-27-321. On the other hand, CSX argues that the relevant provisions of section 31A-27-821 are not ambiguous on their face. For example, CSX asserts that the terms "consideration" and "ordinary course of business" have only one meaning respectively, precluding the court from looking outside the language of the statute.

{12 We find that an ambiguity exists in the statute and that it is therefore proper to look to legislative history and policy considerations for guidance in our statutory interpretation. The ambiguity lies in the fact that, although the term "consideration" is a so-called term of art, it is not as uniformly defined in all contexts as sppellee alleges. CSX argues that the legislature's use of the term "consideration" in section 81A-27-321(4)(a) instead of the term "value," which is used in 11 U.S.C. § 54T(c)(1)(A), evidences that the Utah legislature's choice of words was intentional. CSX supports this contention by citing the fact that section 31A-27-321(4)(d) uses the term "value" instead of "consideration." Therefore, according to CSX, the legislature must have defined and used the terms differently.

113 Legislative history suggests that the terms "value" and "consideration" are not mutually exclusive but are often used interchangeably. Because 11 U.S.C. § 109(b)@Q) excludes "domestic insurance companies" from being debtors under Chapter 7 liquidation proceedings, insurance companies are subject to state liquidation statutes. Most, if not all, state insurance liquidation statutes were based on federal bankruptey This is most likely true with regard to section 31A-27-321 because even though 11 U.S.C. § 547(c) presently uses the phrase "contemporaneous exchange for new value" to de-seribe one of the affirmative defenses to the federal preference rule, the 1898 Bankruptcy Act used the term "new and contemporaneous consideration. " The Bankruptey Act of 1898, ch. 541, 30 Stat. 544 (repealed 1978).

{14 Additionally, the terms "value" and "consideration" have often, in the voidable preference context, been used interchangeably. For example, section 60(b) of the 1898 Bankruptey Act states, "where such purchaser or lienor has given less than such valug, he shall nevertheless have a lien upon such property, but only to the extent of the consideration actually given by him." In a more recent federal bankruptcy case, the court stated:

The payments in the instant case bear none of the earmarks of a contemporaneous exchange. The parties to the litigation settled upon a penalty to cure violations and then they set forth a schedule for payment. There was no new consideration, no contemporameous exchange for new value, only payment upon an antecedent debt to satisfy a fine on long standing violations.

Fisher v. New York City Dep't of Hous. Pres. and Dev. (In re Pan Trading Corp.), 125 B.R. 869, 876-77 (Bankr.S.D.N.Y.1991) (emphasis added).

115 The definition of "consideration" CSX urges this court to adopt is overly broad in that it includes an essential element of contract formation. However, the validity of the contractual agreement between CSX and SATC is not at issue here. The issue here is whether the payments made pursuant to the Agreement constituted a voidable preference and are therefore out of the liquidator's reach. In our view, CSX's interpretation of the terms "consideration" and "ordinary course of business" would produce a result contrary to the fundamental underpinnings of this type of liquidation statute. We must consider the terms used by this statute in light of the statute's basic structure and purpose to ensure that the policy justification behind the statute (the equitable distribution of the debtor's assets) is not undermined. When there is no legislative history for the state statute, as is the case here, we are comfortable following the Seventh Circuit's rule of thumb: "[WJhen confronted with a voidable preference dispute under state insurance law, it is customary to look to federal bankruptcy law for guidance." Pine Top Ins. Co., 969 F.2d at 324; see also Stamp v. Ins. Co. of N. Am., 908 F.2d 1875, 1379 (7th Cir.1990).

II. ANTECEDENT DEBT

16 A receiver may avoid a transfer of property when the "property of an insurer" is transferred "to or for the benefit of a creditor, for or on account of an antecedent debt, made or allowed by the insurer within one year" from the filing of a successful liquidation petition, unless (1) the transfer is made for "new and contemporaneous consideration," or (2) the payment is made "within 45 days after a debt is incurred ... in the ordinary course of the business of the insurer and according to normal business terms." Utah Code Ann. §§ 81A-27-321(1)(a), (4)(a), (48)(b) (emphasis added).

117 Before addressing the affirmative defenses, we must first determine whether SAIC made payments to CSX "for or on account of an antecedent debt." Id. § 31A-27-321(1)(a). Under the Bankruptcy Code, "debt" is defined as "lability on a claim." 11 U.S.C. § 101(1). "A debt is antecedent if it is incurred before the transfer." Southmark Corp. v. Schulte Roth & Zabel, 88 F.3d 311, 316-17 (5th Cir.1996); In re Miniscribe Corp., 123 B.R. at 90. The definition of "claim" in the federal bankruptcy context is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(5b)(A). The Seventh Circuit has reminded us that "the concepts of debt and claim [in the federal bankruptcy context] are co-extensive: a creditor has a 'claim' against the debtor; the debtor owes a 'debt' to the creditor." Energy Coop., Inc. v. SOCAP Int'l (In re Energy Coop., Inc.), 832 F.2d 997, 1001 (7th Cir.1987) (stating, "when a claim exists, so does a debt") (citation omitted); Southmanrk Corp., 88 F.3d at 316-17. "In other words, when a creditor has a claim against the debtor-even if the claim is unliquidated, unfixed, or contingent-the debtor has incurred a debt to the creditor." In re Energy Coop., Inc., 832 F.2d at 1001. Congress gave the term "claim" the "broadest possible definition" so as to include it within the meaning of the term "debt" and to ensure an equitable distribution to all similarly situated eredi-tors. Without this broad definition, Congress feared that the preference statute would be meaningless, allowing would-be-debtors to escape the requirements of the statute and avoid the preference limitation altogether, thereby diminishing the value of the estate for other creditors.

118 The Utah Legislature has defined "claim" as "a request or demand on an insurer for payment of benefits according to the terms of an insurance policy," Utah Code § 31A-1-301(19), and "creditor" as "a person, including an insured, having any claim, whether: (a) matured; (b) unmatured; (c) liquidated; (d) unliquidated; (e) secured; (f) unsecured; (g) absolute; (h) fixed; or %) contingent," Id. § 31A-1-301(28). It seems consistent with the intent of this preference statute (to preserve an equitable distribution of insurer's assets upon liquidation) that the term "claim," as defined by the state legislature, be synonymous with the term "debt." Here, CSX (the insured) was clearly a creditor with an unmatured claim, and if CSX was the creditor, SAIC must therefore have been the debtor.

€ 19 Additionally, a erucial factor in whether a transfer was made for or on account of an antecedent debt is determining when the debt, or in this case the claim, arose. Ogden v. Hazen, 243 B.R. 104, 112 (10th Cir.B.A.P. (Utah) 2000) (noting that in order to determine whether a debt was antecedent, the court must first "determine if the record established that the Appellant had a claim against the Debtor before the transfer"). According to section 31A-1-301(19), CSX's asbestos-related claims against SAIC arose when CSX or its predecessors "requested" payment from SAIC regarding its asbestos-related claims, all of which arose under CSX's insurance policy effective for the 1979-1982 coverage period. The facts do not reveal exactly when CSX requested payment from SAIC on those claims. However, the three lawsuits filed by CSX or its predecessors were all filed on or before January 11, 1991. The Agreement and/or any of the three payments arising out of the Agreement did not exist until October 1991. Thus, SAIC's three payments arose "for or on account of an antecedent debt" because CSX's "claims" against SAIC constituted a "debt," and the debt was "incurred before the transfer."

T20 Even though CSX contends that federal bankruptey law should not guide our analysis in this case, CSX relies upon In re White River Corp., 799 F.2d 631, 688 (10th Cir.1986), a federal bankruptcy case, for the proposition that monthly payments under a lease agreement do not constitute debts until . "the actual dates the rent [is] due." Therefore, CSX argues, "the debts for which the payments were made were incurred when actually due under the agreement." It is true that "a debt is incurred when a debtor first becomes legally bound to pay." Id. at 632; see also In re RDM Sports Group, Inc., 250 B.R. at 812; In re Pan Trading Corp., 125 B.R. at 875. However, "legal lability [does not have to be} established through litigation," especially in a preference context. Cybermech, Inc. v. Royal Cake Co., Inc., 18 F.3d 818, 822 (4th Cir.1994). As we have already stated, CSX's claims arose, under section 31A-27-821, when CSX "request[ed] ... payment of benefits according to the terms of [its] insurance policy" with SAIC. Utah Code Ann. § 81A-1-801(19).

121 CSX's analogy to lease payments becoming debts upon their due date is incongruous with the facts of this case. Courts have stated that "a debt for rent is incurred as the lease progresse[s] rather than . when the lease [is] executed." Iowa Premium Serv. Co. v. First Nat'l Bank (In re Iowa Premium Serv. Co.), 695 F.2d 1109, 1112 n. 7 (8th Cir.1982) (applying this reasoning to determine that interest payments become debts upon their due date, not when the lease agreement is executed but when the monthly lease payments become due); see also Armstrong v. Gen. Growth Dev. Corp. (In re Clothes, Inc.), 35 B.R. 489, 491-92 (Bankr.D.N.D.1988). Rent or lease payments are distinguishable from payments made pursuant to a settlement agreement in that legal Hability in the enforcement of the terms of the agreement attaches on the effective date of the settlement agreement, not on the date the payments are due. Nevertheless, SAIC's legal obligation to indemnify CSX was not incurred upon execution of the Agreement; it arose from CSX's insurance policy during the 1979-1982 coverage period. "[A] settlement is merely the method in which a claim is negotiated and satisfied by the parties prior to trial. The fact that a claim is agreed to immediately by the insurer, or negotiated over a period of time, does not negate the fact that the claim arose out of the insurance policy...." Buggage v. Yellow-Checker Cab Co., 623 So.2d 906, 907 (La.Ct.App.1993); see also Upstairs Gallery, Inc. v. Macklowe West Dev. Co. (In re Upstairs Gallery, Inc.), 167 B.R. 915, 919 (9th Cir.B.A.P. (Cal.) 1994) (stating, "[mjerely because the parties settled and this settlement resulted in payment to the creditor, it does not follow that the settlement creates a new obligation for which the payment may be deemed outside the seope of § 547(b)(2) and as a 'contemporaneous exchange for new value under § 547(c)(1)"); In re Pan Trading Corp., 125 BR. at 875 (noting that "[ulnless an installment contract is made in the ordinary course of business, a debtor generally becomes legally obligated on it on the date when the debtor originally undertook the obligation, not when each payment becomes due"). In summary, SAIC became legally obligated to indemnify, CSX for any of CSX's asbestos-related claims when it sold CSX the insurance policy. The three payments provided in the Agreement were payments made pursuant to that policy. Therefore, the execution of the Agreement did not create SAIC's obligation to indemnify CSX or its predecessors; the policy created the obligation. For purposes of section 31A-27-821, SAIC incurred the debt no later than when the policy period ended in 1982. Therefore, the liquidator was entitled to avoid SAIC's three payments "made for or on account of an antecedent debt," unless CSX can prove one of the statutory affirmative defenses.

III. NEW AND CONTEMPORANEOUS CONSIDERATION

22 In its memorandum decision, the district court held that, since "the Settlement Agreement between SAIC and CSX released CSX's existing and future claims[,] ... the payments received by CSX were for new and contemporaneous consideration." We disagree with this conclusion.

123 We agree with SAIC that CSX must prove the payments it received from SAIC were both "new" and "contemporaneous." First, SAIC's payments to CSX did not constitute "new" consideration because a release of future Hability under the policy and a foregone right to judgment with respect to the policy are not new and contemporaneous consideration. The general rule is that "[florbearance from exercising pre-existing rights does not constitute new value." Am. Bank v. Leasing Serv. Corp. (In re Air Conditioning, Inc. of Stuart), 845 F.2d 298, 298 (11th Cir.1988) (holding that "(aln agreement by an undersecured creditor to forego its right to foreclose on collateral cannot be treated as new value"); In re RDM Sports Group, Inc., 250 BR. at 817 (defining "forbearance" as "[the act of refraining from enforcing a right, obligation, or debt" and holding that "releasing a debtor from its contractual obligations does not fall within § 547(a)(@)'s definition of new value and is not the equivalent of new value"); Clark v. Frank B. Hall & Co. of Colo. (In re Sharoff Food Serv., Inc.), 179 BR. 669, 677-78 (Bankr.D.Colo.1995) (stating that "[mJost [clourts do not consider forbearance from terminating an agreement such as a lease or insurance as new value"); Bioplasty, Inc. v. First Trust Nat'l Ass'n (In re Bioplasty, Inc.), 155 B.R. 495, 499-500 (Bankr.D.Minn.1993) (holding that a dismissal of securities claims and release of injunction was not new value under federal bankruptcy law); In re Pan Trading Corp., 125 BR. at 876-77 (holding that "forbearance from continuing a lawsuit does not create new value" and that a failure "to prove the specific value of [the] alleged forbearance" did not constitute "new consideration"); Levine v. Cent. States, Southeast; Southwest Areas Pension Fund (In re Ottawa Cartage, Inc.), 55 B.R. 371, 376 (Bankr.N.D.Ill.1985) (holding that "forbearance from obtaining an immediate judgment ... did not enhance [debtor's] estate" and was therefore not new value).

124 The requirement that the consideration be "new" is to allow the insurer "to procure necessary goods and services" that do not diminish the value of the insurer's estate. In re Pan Trading Corp., 125 BR. at 876 (referring to the "new value" exception of § 547 of the Bankruptey Code). In this case, SAIC did not receive any goods or services from CSX. The only thing SAIC received was CSX's promise to not pursue any further litigation relating to the insurance policy. Such forbearance is not "new consideration" under Utah Code section 31A-27-8321.

125 Second, we must determine whether CSX gave SAIC "contemporaneous } consideration. We previously established that the three payments provided for in the Agreement between CSX and SAIC were in satisfaction of an antecedent debt. Thus, CSX and SAIC were not engaging in a contemporaneous transaction but were settling a pre-existing business obligation that arose under the insurance policy effective between 1979-1982. No new consideration was given contemporaneously.

126 We find the above conclusions to be in harmony with the policy behind Utah's voidable preference provision. The policy behind the new and contemporaneous consideration defense is that a debtor should not be able to make transfers on the eve of liquidation that "deplete[] [the debtor's assets] to the detriment of the other creditors." In re Futoran, 76 F.3d 265, 267 (9th Cir.1996); see also In re RDM Sports Group, Inc., 250 B.R. at 816 (stating "the theory behind the new value exception is that a creditor who truly gives new value in exchange for a preferential transfer has not depleted the debtor's estate to the detriment of other creditors"); Charisma Inv. Co. v. Airport Sys., Inc. (In re Jet Fl. Sys., Inc.), 841 F.2d 1082, 1082-84 (11th Cir.1988). Another court has stated,

When a creditor threatens to exercise a legal remedy against a debtor, and in exchange for not so doing extracts a payment for antecedent debt, nothing of value has accrued to the debtor estate to compensate other creditors for the loss of that payment. ... Such a transaction falls squarely within the ambit of the preference law, rather than within its exceptions.

Womack v. Houk (In re Bangert), 226 B.R. 892, 908 (Bankr.D.Mont.1998) (citation omitted). To be consistent with the policy behind the federal preference statute, we conclude that new consideration exists when the value of the estate is enhanced by the creditor's actions. See, e.g., In re Sharoff Food Serv., 179 B.R. at 677. The Utah Code endorses this same rationale under the voidable preference statute: A transfer is preferential when "the effect of [the] transfer may enable the creditor to obtain a greater percentage of his debt than another creditor of the same class would receive." Utah Code Ann. § 31A-27-821(1)(a). Today's holding should not be construed to require that a bargained-for release or forbearance does not constitute valid consideration in every instance. Seq, e.g., Peirce v. Peirce, 2000 UT 7, I\ 21, 27-28, 994 P.2d 198 (holding that husband's bargained-for consideration in a contract context was "forbearance from giving away substantial portions of his property before his death"). However, the value of such a release or forbearance in a voidable preference context is too speculative and, in some instances, may never be added to the debtor's estate. Ultimately, public policy supports protecting the debtor's estate from being hastily diminished on the eve of bankruptcy or liquidation for the benefit of all similarly situated creditors.

1 27 CSX relies upon the holdings in Lewis v. Diethorn, 898 F.2d 648 (3d Cir.1990), and Nelson Co. v. Amquip Corp., 128 BR. 930 (Bankr.E.D.Pa.1991), to support its argument that "a release of claims and termination of a lawsuit through a settlement agreement may be 'new value'" We find neither case persuasive. Lewis held that the debtor, having received "freedom from the risk of [future] litigation," had satisfied the new value defense under 11 U.S.C. § 547. 898 F.2d at 650. Both Lewis and Nelson have been soundly criticized and are inconsistent with the majority of federal cases dealing with the "exchange for new value" defense that we have cited in this opinion. Under the facts of this ease, CSX has not proven the new and contemporaneous consideration defense under section 81A-27-821(1)(a).

IV. ORDINARY COURSE OF BUSINESS

28 Section 31A-27-821(4)(b) of the Utah Code provides that a "receiver may not avoid a transfer of property" if "the payment" is made "within 45 days after a debt is incurred ... in the ordinary course of the business of the insurer and according to normal business terms." CSX contends that the liquidator may not avoid the three payments at issue in this case because each element of the ordinary course of business provision has been satisfied.

129 We hold that CSX has not sufficiently established this affirmative defense. First, because we previously determined that SAIC's payments to CSX were made for or on account of an antecedent debt and that SAIC's debt arose from the 1979-1982 policy period, we conclude that the payments were

not made within forty-five days after the debt was incurred; all three payments were made after October 1991.

180 Second, we also hold that the payments were not made in the ordinary course of SAIC's business. To prove a transfer is non-preferential under the ordinary course of business exception, the creditor must prove:

(1) that the transfer was in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee, (2) that the transfer was made in the ordinary course of business or financial affairs of the debtor and the transferee, and (8) that ' the transfer was made according to ordinary business terms.

Fid. Sav. & Inv. Co. v. New Hope Baptist, 880 F.2d 1172, 1177 (10th Cir.1989). The purpose behind this exception is " 'to leave undisturbed normal financing relations'" Clark v. Balcor Real Estate Fin., Inc. (In re Meridith Hoffman Partners), 12 F.3d 1549, 1553 (10th Cir.1993). Furthermore, "lt discourages 'unusual action' that may favor certain creditors or hasten bankruptcy by alarming other ereditors and motivating them to force the debtor into bankruptcy to avoid being left out." Id. (citation omitted). Normal financing relations are "the kinds of terms that ... [are] use[d] in ordinary circumstances, when debtors are healthy. " Id. (emphasis added). The court may look at industry standards as a whole only where the history between the debtor and creditor is insufficient to determine whether the business relations were "ordinary." In re Energy Coop., Inc., 882 F.2d at 1004-05.

1 31 We now examine the "prior course of conduct" between SAIC and CSX to determine whether the payments were made to CSX in the ordinary course of business and according to normal business terms. In re Miniscribe Corp., 128 B.R. at 98. CSX argues that SAIC's payments were made in the ordinary course of SAIC's business because reviewing, settling, and paying disputed claims is "at the heart" of the insurance industry. We agree with CSX's contention on its face; however, settling an existing lawsuit is much different than settling a normal claim with an insured. An insurer reviews, settles, and pays disputed claims regularly. However, when relations between insurer and insured reach the courts, such action is not normal and certainly demonstrates an unhealthy relationship between the debtor and the creditor. These are not the sorts of transactions that the ordinary course of business exception was intended to protect. Thus, we hold that CSX's ordinary course of business defense under section 31A-27-821(4)(b) fails.

CONCLUSION

182 We reverse the trial court's order granting summary judgment in favor of CSX because of our holding that SAIC's payments to CSX were made for or on account of an antecedent debt. Additionally, we hold that CSX failed to satisfy the requirements behind the new and contemporaneous consideration defense found in section 31A-27-321(4)(a) and the ordinary course of business defense found in section 81A-27-821(4)(b).

1 33 Associate Chief Justice DURRANT, Justice RUSSON, Judge GREENWOOD, and Judge EVES concur in Chief Justice DURHAM's opinion.

4 34 Having recused themselves, Justice HOWE and Justice WILKINS do not participate herein; Court of Appeals Judge PAMELA T. GREENWOOD, and District Judge J. PHILIP EVES sat.

      . In granting CSX Corporation's motion for summary judgment, the trial court found that new and contemporaneous consideration existed and therefore failed to "reach the remaining issues." One of the remaining issues, which was argued in the court below and in the briefs on appeal, is whether CSX Corporation's actions satisfy the ordinary course of business defense found in Utah Code Ann. section 31A-27-321(4)(b). Although the trial court did not rule on this issue, we deem it appropriate to do so here.

      . Each law suit alleged, [slubstantial premiums have been expended to purchase such liability or indemnity policies, and all applicable conditions precedent under such policies have been met," and "[elach defendant insurance company is obligated under its liability or indemnity insurance policies to pay in full all sums which plaintiff shall become legally liable to pay, through judgment, settlement or otherwise, in the asbestos-related bodily injury lawsuits."

      . Section 31A-27-310(4) permits "the [insurance] commissioner [to] petition the court to declare the insurer insolvent."

      . Pursuant to 11 U.S.C. § 547(g), "[the Trustee bears the burden of proving that the transfer ... is avoidable under section 547(b)." Rieser v. Landis & GYR Powers, Inc. (In re Bownic Insulation Contractors, Inc.), 134 B.R. 261, 264 (Bankr.S.D.Ohio 1991). However, once that burden has been met, the burden of proof shifts to the party asserting the "substantially contemporaneous" and/or "ordinary course of business" affirmative defenses found in § 547(c). Id.

      . According to CSX, the operative definition of the term "consideration" should be as follows: ''The cause, motive, price or impelling influence which induces a contracting party to enter into a contract. The reason or material cause of a contract. Some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other." (quoting Black's Law Dictionary 306 (6th ed.1990)). CSX further argues that the term "consideration" in Utah Code section 31A-27-321(4)(a) should be synonymous with "fair consideration" as defined in section 31A-27-102(1)(b). We find this argument unpersuasive in light of the fact that the term "fair consideration" is specifically used in three different sections of the chapter, but not in the voida-. ble preference provisions at issue here. See, eg., Utah Code Ann. §§ 31A-27-319 to 321. We simply cannot assume that the legislature intended "new and contemporaneous consideration" to mean "fair consideration."

      . Milton S. Wolke, Jr., Insurance Companies and Voidable Preferences, 18 Conn. L.Rev. 227, 228, * 261 (1986) (stating that "voidable preference sections [of state statutes] are based on either the 1938 Chandler Act, section 60 or one of the prior amendments to the 1898 Bankruptcy Act").

      . Section 60(a)(8) of the Bankruptcy Act of 1898 states, "a transfer wholly or in part, for or on account of a new and contemporaneous consideration shall, to the extent of such consideration and interest thereon and the other obligations of the transferor connect therewith, be deemed to be made or suffered at the time of the transfer."

      . Legislative history confirms just how broadly the term "claim" was intended to reach: "bly this broadest possible definition [of the term "claim"] ... the bill contemplates that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." Southmark Corp., 88 F.3d at 317 (citing H.R.Rep. No. 95-595 at 309 (1977)).

      . The United States Supreme Court concurred with this interpretation.
      Section 101(12) of the Bankruptcy Code defines "debt" as a "liability on a claim." This definition reveals Congress' intent that the meanings of "debt" and "claim'" be coextensive (citation omitted). Thus, the meaning of "claim" is crucial to our analysis. A "claim" is a "right to payment, whether or not such right is reduced to judgment, liquidated, unliq-uidated, fixed, contingent, matured, unma-tured, disputed, undisputed, legal, equitable, secured, or unsecured." 11 U.S.C. § 101(4)(A). As is apparent, Congress chose expansive language in both definitions.... For example, to the extent the phrase "right to payment" is modified in the statute, the modifying language ("whether or not such right is ...") reflects Congress' broad rather than restrictive view of the class of obligations that qualify as a "claim" giving rise to a "debt." See also H.R.Rep. No. 95-595 (describing definition of "claim" as "broadest possible" and noting that Code "contemplates that all legal obligations of the debtor ... will be able to be dealt with in the bankruptcy case"); accord, S.Rep. No. 95-989.
      Pa. Dep't of Public Welfare v. Davenport, 495 U.S. 552, 558, 110 S.Ct. 2126, 109 L.Ed.2d 588 (1990).

      . "A debt may exist even though it has not been valued conclusively and even though there is a bona fide dispute about the obligation to pay." Stamp, 908 F.2d at 1380.

      . The October 14, 1991 settlement letter, which set forth the following terms and conditions, stated, "This sum shall be in full satisfaction of any claim by CSX against the policies issued by Southern for any losses due to Asbestos-Related Claims, past, present, or future, whether or not asserted in the [three lawsuits brought by CSX's predecessors]." In our view, this clearly demonstrates that both parties understood the payments to be in satisfaction of SAIC's obligation arising under the indemnification policy during 1979-1982, the effective duration of the policy.

      . The policy provided, "The company will indemnify the insured for all sums which the insured shall become legally obligated to pay as damages ... because of personal injury or property damage." SAIC further agreed that it would indemnify CSX "with respect to all ultimate net loss because of personal injury which occurs during each annual period while this policy is in force commencing from its effective date."

      . The Federal Bankruptcy code, 11 U.S.C. § 547(c)(1)(B), uses the term "substantially contemporaneous." Due to the fact that SAIC's debt was incurred during the policy period between 1979-1982, and the payments were made in October and November of 1991 and January of 1992, there is no question that the payments were not contemporaneous to any exchange, even if there had been "new" consideration, which in this case there was not. We therefore find it unnecessary to interpret the exact meaning of the "contemporaneous" element of the new and contemporaneous consideration defense at this time.

      . In Lewis, the parties negotiated a settlement agreement whereby the debtor made payments to settle pending litigation and the creditor agreed "to discontinue their suit ... and to lift the lis pendens on the property" at issue in the litigation. Id. at 649.

      . One court noted: 600
      [The defendants argue that the transfer was made, not on account of such antecedent debt, but rather to eliminate the costs and risks associated with litigation. The defendants rely on Lewis v. Diethorn, 893 F.2d 648, 650 (3d Cir.1990). Although Diethorn did hold that the settlement payments in the case before it were made in consideration for the termination of the lawsuit and release of a /is perndens, I am not persuaded by the Third Circuit's holding. The opinion contains no analysis whatsoever, and simply makes the conclusory statement that the payments were made for one reason rather than another. Dietkorn, 893 F.2d at 650.
      Even if I could be convinced that Diethorn reached the proper conclusion on the facts before it, I would distinguish it from the case before me today.... Certainly the debtor's driving concern in settling the class action suit, as in any large commercial dispute, was the risk of liability. The settlement payments were made in light of such risk, and therefore were on account of the antecedent debt.
      In re Bioplasty, Inc., 155 B.R. at 499. See also In re RDM Sports Group, Inc., 250 BR. at 813-14 (declining to follow Lewis and emphasizing that the debtor "incurred a legal obligation ... long before the parties reached a settlement."); Lease-A-Fleet, Inc. v. Wolk (In re Lease-A-Fleet, Inc.), 151 B.R. 341, 352 (Bankr.E.D.Penn.1993) (distinguishing Lewis and Nelson by the fact that the two cases "appear driven by the respective courts' conclusion that what the parties exchanged in the respective settlements was substantially equivalent"). It is fruitless to engage in such an "equivalent" analysis in the present matter because we have no way of knowing the value of CSX's possible future claims against SAIC. Such an analysis would be premised upon mere speculation and would therefore lack any merit.

      . "For example, filing a lawsuit to enforce a debt may not be unusual when a debtor does not pay, but payments according to a settlement agreement are not according to ordinary business terms." In re Meridith Hoffman Partners, 12 F.3d at 1553.


source: Caselaw Access Project

author: DURHAM, Chief Justice: WILKINS, Justice,

license: Public Domain

text:
    2003 UT 20
    State of UTAH, Plaintiff and Appellee, v. Robert Nate ABELL, Defendant and Appellant.
    No. 20001092.
    Supreme Court of Utah.
    May 9, 2003.

      Mark L. Shurtleff, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, for plaintiff.
    J. Bryan Jackson, Cedar City, for defendant.
   DURHAM, Chief Justice:

INTRODUCTION

1 1 In this case, the defendant appeals the denial of his motion to suppress evidence obtained during an administrative vehicle checkpoint detention. Based on our ruling in State v. DeBooy, 2000 UT 82, 996 P.2d 546, the defendant argues that this checkpoint was unconstitutional under article I, section 14 of the Utah Constitution. We agree and reverse the denial of his motion to suppress.

BACKGROUND

12 On February 29, 2000, Judge Kent Nielsen approved the Utah Highway Patrol's ("UHP") application to conduct an administrative highway checkpoint the following day between 7 a.m. and 7 p.m., on Interstate 70, about four miles west of Salina, Utah. The application was submitted pursuant to Utah Code Ann. § 77-23-104 (1999), which requires judicial approval of a written plan prior to the operation of a checkpoint. Under section T7-23-104, the plan must include several details relating to the operation of the checkpoint, including the purpose for establishing the checkpoint. Utah Code Ann. section 77-28-104(2)(a)liv). The checkpoint plan authorized eleven independent checks among seven stated purposes:

A. To promote a safe public environment for all persons using the state highways.
B. To inspect compliance with seat belt and child restraint requirements.
o To determine if drivers are impaired.
D. To detect minors having in their possession alcohol or controlled substances.
E. To conduct exterior examination of vehicles for the required lights, turn signals, and other exterior required safety devices.
F. To conduct routine level three inspections of commercial vehicles over 26,-001 pounds GVW.
G. To inspect the validity of license plates, registration certificates, proof of insurance and driver licenses.

See Application and Authorization for Administration Traffic Checkpoint, IV.

3 While the application authorized multiple checks, the portion of the checkpoint plan providing instructions to officers conducting the checkpoint indicated that this was a "driver license and registration check":

This administrative checkpoint is a driver license and registration check and is to detect and apprehend individuals suspected of violating the following regularly enforced state laws: driver license violations; registration violations; proof of insurance violations; equipment violations; safety inspection violations; aleohol and DUI violations.

Id. at VII(H).

T 4 The instructions also briefly mentioned how officers would conduct their inquiries at this driver license checkpoint:

Officers will be instructed to request a drivers license, state vehicle registration certificate and valid proof of insurance. Officers will be directed to make a cursory walk around the vehicle inspecting for plain view evidence of the above listed violations.

Id.

15 Under the section of the application dealing with the sequence of traffic to be stopped, the application stated that the inspection and inquiry of non-commercial vehicles were "estimated to require approximately 30 seconds duration." Id. at III. Inspections of commercial vehicles were estimated to last approximately a minute and a half. Id. These time constraints were not listed among the instructions provided to the officers in the application, however. Rather, the instructions section of the checkpoint plan indicated "citizens will not be delayed longer than is reasonable" to check for all of the violations.

T6 Some details concerning the organization of the checkpoint staging area were also included in the checkpoint plan. Id. Large diamond-shaped orange warning signs were to be placed "1500, 1000, and 500 feet prior to the checkpoint." Id. at V(B)(4). The signs preceding the checkpoint alerted drivers to "Road Work Ahead" and "Right Lane Closed Ahead," but did not mention the presence of a highway checkpoint.

T7 The application also included a list of the agencies involved in the checkpoint, the name of the officer in charge, the minimum number of officers involved (six), and listed equipment to be present at the checkpoint, including signs, cones, barrels, police vehicles and emergency lights, a breath alcohol testing unit, and the traffic control signs. Two drug sniffing dogs accompanied by UHP K-9 troopers were also present at the checkpoint.

T8 The appellant, Robert Abell ("Abell"), is an adult resident of Colorado. On March 1, Abell and a passenger were driving a vehicle with Colorado license plates on Interstate 70 when, after passing the "road work ahead" signs, UHP K-9 trooper Jeff Chugg (Trooper Chugg) directed them toward the checkpoint area. Trooper Chugg observed that neither Abell nor his passenger were wearing seatbelts. He also noticed that the windows were rolled down. The trooper motioned for the vehicle to stop at the checkpoint. Once stopped, Trooper Chugg asked Abell for identification, registration, and insurance information. Abell handed the trooper a vehicle rental agreement, showing that the vehicle was overdue and that Utah was not an area in which the vehicle was authorized to be. As the trooper talked with Abell, the trooper allegedly smelled the odor of burnt marijuana in the vehicle. Trooper Chugg also testified that Abell appeared "very nervous" and had a "quiver in his voice." The trooper also noted that Abell was wearing only a small vinyl or leather vest, despite the cool March weather.

T 9 The UHP trooper returned to his own vehicle to issue a citation for the seatbelt violation. As he did so, another officer reported that a semi-truck driver, stopped behind Abell at the checkpoint, wanted to sign a complaint against Abell for speeding and driving in a reckless manner. While the trooper was completing the seatbelt citation, another officer, UHP K-9 trooper Ryan Bauer, asked Abell for permission to search his vehicle. Abell refused.

10 Upon completing the citation and returning to the vehicle, the trooper asked Abell to submit to several field sobriety tests. Abell complied. Based on the tests, Trooper Chugg concluded that Abell was driving under the influence of a central nervous system stimulant.

4 11 Meanwhile, Abell's passenger had consented to a search of his baggage. Accordingly, two officers opened the trunk, removed the passenger's baggage, and deployed a drug sniffing dog, who alerted to the presence of narcotics inside the vehicle. A see-ond police dog alerted to both the interior of the vehicle and the open trunk. At this point, Abell told the officers where they would find a small amount of marijuana in the vehicle. Ultimately, the officers found approximately 10 grams of marijuana, less than two grams of cocaine, and items of drug paraphernalia in Abell's vehicle.

112 Abell was taken into custody and charged with possession of cocaine, possession of marijuana, possession of drug paraphernalia, driving without a seatbelt, driving under the influence of drugs or alcohol, and speeding. Abell submitted a motion to suppress the evidence obtained from the search at the highway checkpoint, but the trial court denied the motion. The trial court reasoned that the checkpoint was conducted within the parameters set out in State v. DeBooy, 2000 UT 32, 996 P.2d 546, this court's prior ruling on the constitutionality of multi-purpose vehicle checkpoints. Abell then entered a conditional plea of guilty on all counts, subject to the condition that he could appeal the denial of the motion to suppress.

113 On appeal, Abell advances four arguments to support his motion to suppress. First, he argues that the application for the checkpoint was too broad to be valid under section 77-23-104 and this court's decision in DeBooy because it listed multiple purposes for the checkpoint and gave officers excessive discretion to conduct the checks. Second, Abell argues that the search of his vehicle, which included the use of drug sniffing dogs, was beyond the stated purposes of the administrative plan and that the entire checkpoint was merely a pretext to look for drugs. Third, Abell argues that the checkpoint plan was not neutrally administered, but focused specifically on out-of-state vehicles. Finally, he argues that because the search was unlawful, the evidence obtained constitutes "fruit of the poisonous tree" and should be suppressed.

T14 We agree that the checkpoint plan was conducted beyond the boundaries of seetion 77-28-104 and was not in compliance with our decision in DeBooy.

ANALYSIS

I. STANDARD OF REVIEW

%15 The trial court's denial of Abell's motion to suppress was premised on the legality of the checkpoint in question. This is a conclusion of law which we review for correctness, granting no deference to the conclusions of the trial court. DeBooy, 2000 UT 32 at ¶ 7, 996 P.2d 546.

II. CONSTITUTIONALITY OF VEHICLE CHECKPOINTS

T16 Persons stopped at checkpoints have been "seized" for the purposes of analysis under article I, section 14 of the Utah Constitution and the Fourth Amendment to the United States Constitution. DeBooy, 2000 UT 32, 996 P.2d 546; United States v. Martinez-Fuerte, 428 U.S. 548, 556, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976). We have noted previously that both the Utah constitution and the federal Constitution prohibit "sweeping, dragnet-type detentions of ordinary people engaged in peaceful, ordinary activities." DeBooy, 2000 UT 32 at 13, 996 P.2d 546. Rather, " '[sJpecific and articulable facts ... taken together with rational inferences from those facts [must] reasonably warrant' the particular intrusion." Id. at 113 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Under both federal and Utah law, however, administrative highway checkpoints are permitted as a narrow exception to the reasonable suspicion requirement-allowing the state to detain vehicles to conduct brief, limited inquiries that advance important public interests related to the use and safety of the highways. Utah Code Ann. § 77-283-104 (1999); DeBooy, 2000 UT 82 at 131; Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 449, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); Martinez-Fuerte, 428 U.S. at 561-62, 96 S.Ct. 8074.

17 Because vehicle checkpoints implicate the protections of both the Fourth Amendment and article I, section 14 of the Utah Constitution, we necessarily begin our analysis with those provisions. While the state and federal laws contain identical language, we have not always interpreted Utah's provisions in the same way that federal courts have construed the federal language. DeBooy, 2000 UT 32 at ¶ 12. Indeed, in De-Booy we examined federal checkpoint cases decided under the Fourth Amendment, but ultimately struck down the checkpoint on independent state constitutional grounds. DeBooy, 2000 UT 32 at ¶ 31, n. 7, 996 P.2d 546. The opinion we issue today is also based on state constitutional grounds. Nevertheless, in light of recent developments in United States Supreme Court case law, we will review the federal checkpoint cases solely for their persuasive value, before reviewing our decision in DeBooy and turning to the specific challenges presented in this appeal.

A. Federal Analysis of Checkpoint Constitutionality

118 In evaluating the constitutionality of highway checkpoints, the United States Supreme Court has employed a balancing test that weighs "the degree to which the seizure [at the checkpoint] advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 448 U.S. 47, 51, 99 S.Ct. 2687, 61 L.Ed.2d 357 (1979). Critical to the Court's decision-making has been the "assur[ance] that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Id. (citing Delaware v. Prouse, 440 U.S. 648, 654-655, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (holding unconstitutional a roving police patrol authorized to stop any vehicle to check for driver licenses without any particularized suspicion)).

1 19 The Supreme Court has upheld checkpoints as reasonable intrusions on privacy in cases where the public interest was compelling and related to the use of the highways. In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 8074, 49 L.Ed.2d 1116, the Court upheld the constitutionality of a highway checkpoint located more than fifty miles away from the Mexican border that was used to detect the presence of illegal immigrants. In Site, 496 U.S. at 447, 110 S.Ct. 2481, the Court upheld the constitutionality of a sobriety checkpoint that required a brief detention and examination of drivers for signs of intoxication. Id. at 447, 110 S.Ct. 2481. In both instances, the Court held that the checkpoints did not violate the Fourth Amendment because they involved minimally intrusive regularized stops, employed standardized procedures that limited the discretion of individual officers, minimized the 'fear and surprise' to motorists, and advanced purposes closely related to the use of the highways. Martinez-Fuerte, 428 U.S. at 559-62, 96 S.Ct. 8074; Sitz, 496 U.S. at 452-55, 110 S.Ct. 2481. In neither case was there any allegation that the checkpoints were being used to advance interests other than border control and preventing drunk driving, both state concerns of critical importance.

20 More recently, however, the Supreme Court held that individualized suspicion is required where the primary purpose of a vehicle checkpoint is simply to advance general law-enforcement goals, such as narcotics detection. In City of Indianapolis v. Edmond, 581 U.S. 82, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), the Court struck down Indianapolis' "drug checkpoint" program that was specifically designed to promote the interdiction of narcotics. Id. at 40, 121 S.Ct. 447. The program required drivers to stop at a designated drug checkpoint and produce a license and registration. Id. at 85, 121 S.Ct. 447. Officers then conducted a brief examination of the driver for signs of impairment and conducted exterior examinations of vehicles for plain-view violations. Id. A trained narcotics dog was also walked around the outside of each vehicle to detect the presence of drugs. Id.

4 21 In holding that the nareoties-detection checkpoints violated the Fourth Amendment, the Court rejected the city's argument that vehicle checkpoints are a lawful means of promoting general crime control. While the Court had previously upheld checkpoints when they advanced purposes related to the use and safety of the highways, the Edmond Court did not consider drug interdiction to be any more closely related to highway use than other kinds of eriminal investigations. Id. at 41, 121 S.Ct. 447. Therefore, the Court "would not credit the 'general interest in crime control'" as justification for suspi-cionless stops. Id. (citing Prouse, 440 U.S. at 659, n. 18, 99 S.Ct. 1891).

122 In order to distinguish lawful and unlawful checkpoints, the Court adopted a "primary purpose" test. If the primary purpose of the checkpoint is only to advance general law enforeement-rather than goals specifically related to highway use and safety-the checkpoints will not pass constitutional muster in the absence of individualized suspicion. Id. The Court noted:

We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.

Id. at 44, 121 S.Ct. 447.

123 Employing this analysis, the Court distinguished Martines-Fuerte and Sitz on the grounds that those checkpoints advanced interests that were "closely related" to issues of highway use and safety (border control and drunk driving), whereas the primary purpose of the Indianapolis program was merely "to detect evidence of ordinary erimi-nal wrongdoing." Id. at 41, 121 S.Ct. 447. "Without drawing the line at roadblocks designed primarily to serve the general interest in crime control," the Court noted, "the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life." Id. at 42, 121 S.Ct. 447.

B. State v. DeBooy

124 Edmond and the Supreme Court's other checkpoint cases are helpful in delineating the scope of permissible and impermissible vehicle checkpoints. We note, however, that the Edmond Court refrained from addressing the issue we decided in DeBooy. In Edmond, because it was agreed that the checkpoints were designed to promote nar-coties detection (an impermissible purpose), the Court did not have to determine whether the State is allowed to establish checkpoints for an ostensibly lawful purpose (Le., drivers license and sobriety checks) but then use those checkpoints to advance general law enforcement goals While the Supreme Court has left that question for another day, this court in DeBooy ruled that such pretex-tual checkpoint stops are impermissible under article I, section 14 of the Utah Constitution. 2000 UT 32 at T31. In DeBooy, we emphasized that the only purposes checkpoints are permitted to advance are those directly related to highway safety. "Magistrate authorization of checkpoints must be narrowly tailored and limited to inquiries directly linked to the safe use of the highways.... Multi-purpose, general warrant like intrusions on the privacy of persons using the highways are unacceptable." Id.

T25 In DeBooy, the defendant was charged with possession of contraband after drugs were discovered during a consensual search of his vehicle at a highway checkpoint. The checkpoint at issue was, as here, a multiple purpose vehicle checkpoint where officers were authorized to conduct a half-dozen independent checks. 2000 UT 32 at € 31, n. 7. In our decision reversing the denial of DeBooy's motion to suppress, we held that such multiple purpose checkpoints were unacceptable under the Utah Constitution. We noted that multiple purpose checkpoints are "far more intrusive than the checkpoints at issue in Martinesz-Fuerte and Sits" Id. at 120. Drivers-in those instances-were briefly detained for only one purpose-either to check for illegal immigrants or drunk drivers. At the checkpoint in DeBooy, as here,

the police conducted sweeping inspections of license plates, registration certificates, insurance certificates, driver's licenses, seat belt use, compliance with child restraint laws, vehicle equipment violations, and compliance with commercial vehicle regulations, in addition to checking for drivers under the influence of alcohol or other substances, as well as other alcohol or controlled substance violations.

Id. at " 21.

1 26 We found the intrusive nature of such extensive checkpoint inspections particularly troubling for two reasons. First, we noted that "when many legal violations are searched for, the purpose of the checkpoint becomes less a highway safety measure, and more a pretext to stop all vehicles to search for any and all violations of the law." Id. at 122.

11 27 The second major concern with multiple purpose checkpoints noted in DeBooy was the lack of limits on officer discretion. We observed that permitting the investigation of so many potential violations meant that officers in the field had virtually "unbridled discretion" in conducting checkpoint inquiries. Id. at 128. As an example of such discretion, we noted that the checkpoint plan permitted officers to "inspect and/or detect . vehicle equipment violations." Id. We observed that officers were not given any guidance on how to conduct such inquiries and that while some officers might only check the headlights, others might undertake a "full 'diagnostic exam." Id. We likened this lack of guidance on how to conduct the checkpoint inquiries to the "much hated and feared general warrants issued by the British Crown in colonial days, where British officers were given blanket authority to search wherever they pleased and for whatever might pique their interest." Id. at 126. Ultimately, we concluded that "a free society cannot tolerate such a practice." Id.

III. ABELL'S CHALLENGES TO THE ADMINISTRATIVE VEHICLE CHECKPOINT

T28 Abell argues that the checkpoint at which he was detained suffers from constitutional defects similar to the checkpoint we struck down in DeBooy.

A. Overbreadih of the Authorization and Excessive Officer Discretion

129 First, Abell argues that the authorization to conduct the multiple purpose checkpoint at issue was too broad. Abell contends that the authorization to investigate multiple legal violations gave individual officers too much discretion in deciding how to conduct checkpoint inquiries and inspections,. Abell argues that this upsets the balance between individual liberties and the state's interest in promoting highway safety. Even though some aspects of the checkpoint may promote highway safety, he points out that permitting multiple inspections dilutes that interest: the more violations that are searched for, the lower the State's interest in promoting any one particular interest.

1 30 The State argues that the checkpoint plan at issue was drafted in light of our opinion in DeBooy, and, unlike DeBooy, involves an authorization that was not too broad and did not give officers excessive discretion. First, the State contends that, while officers in DeBooy were unconstrained in their discretion to conduct inspections for "vehicle equipment violations," officers in this case were only permitted "[tlo conduct exterior examination of vehicles for the required lights, turn signals, and other exterior required safety devices." Second, the State argues that officer discretion was limited because the checkpoint plan stated that inspection and inquiry procedures for passenger vehicles would last only thirty seconds and officers were directed only "to make a cursory walk around the vehicle inspecting for plain view evidence of ... violations." Third, the state argues that neither this court nor the United States Supreme Court has placed any "constitutional limitations on the number of 'checks' that a checkpoint plan may require." DeBooy, 2000 UT 32 at 138 (Rus-son, J., dissenting).

31 We will address each of the State's specific arguments in turn, but note from the outset that we see little meaningful difference in either the breadth of the authorization or the degree of officer discretion allowed at the checkpoints in DeBooy and this case. While the checkpoint in DeBooy purported to be a "sobriety checkpoint" and the checkpoint in this case to be a "drivers license" checkpoint, they are virtually indistinguishable given their multiple purpose authorizations. Minor changes in the wording of their respective authorizations notwithstanding, the six purposes described in the checkpoint plan in DeBooy are exactly the same as the purposes given for the checkpoint plan in this case. The only exception is that here a seventh purpose was added, "to promote a safe public environment for all persons using the state highways." While the two checkpoints were ostensibly created for distinct purposes (sobriety checks and drivers license checks) they are actually indistinguishable given their multiple purpose character.

1. Inspection of Vehicle Equipment Violations

32 Although, as the State points out, the language of the DeBooy checkpoint plan authorized inspection for any "vehicle equipment violations," the authorization in this case was hardly less broad. Here, the authorization required officers to conduct "exterior examination of vehicles for the required lights, turn signals, and other exterior required safety devices." The primary difference between these plans is that the inspections here were supposed to be limited to the exterior of the vehicle. However, the checkpoint plan does not contain any guidance on how officers are to conduct the exterior inspection, nor does it define what constitutes an "exterior required safety device." Some officers may consider cracked windshields and bald tires to constitute exterior safety device violations, while others may not. For some officers, the presence of a particular light may be sufficient, while others may ask the driver to activate the light to ensure it operates correctly. We, along with the officers, are left to guess at the meaning of the "exterior safety device" inspection because neither the checkpoint plan, nor the record, provides one.

133 We conclude that limiting inspection to "exterior lights and other safety devices" does not provide a substantial check on individual officer discretion because of the sheer number of potential violations. Indeed, such an authorization permits officers to examine vehicles for one, some, or all of thirty potential violations of Utah law. Critically, the checkpoint plan does not contain any guidance as to which devices officers were required to check, and which ones they were not. Furthermore, nowhere in the checkpoint plan is it stated whether officers were required to conduct the same kinds of checks on each vehicle. The risk that some officers might choose to check only the headlights and tail lights of one vehicle, while subjecting another vehicle to a "full diagnostic exam" of all exterior lights and safety devices, remains. DeBooy, 2000 UT 32 at 128. Both courses of action would constitute "exterior examination of vehicles for the required lights, turn signals, and other safety devices," but would impact the occupants of the vehicles in very different ways. See id. We are not satisfied that the checkpoint plan ensured that all vehicles would be treated in the same manner. "Such unbridled discretion ... is inherently unreasonable under the Fourth Amendment and article I, section 14." Id.

2. Requirement of a Thirty Second or "Cursory" Inspection

%34 The State's contention that discretion was limited because passenger vehicles were only to be detained for thirty see-onds and officers were directed "to make a cursory walk around the vehicle inspecting for plain view evidence of ... violations" does not satisfy the concerns about officer discretion we expressed in DeBooy. First of all, the thirty second guideline was only included in the section of the checkpoint application pertaining to the "sequence of traffic to be stopped." There is no mention of this time limit in the section of the plan that includes the instructions required to be given to officers conducting the checkpoint. Utah Code Ann. § 77-28-104(2)(a){viti) (1999) (requiring that checkpoint plan include instrue-tions for officers operating the checkpoint). Nor does the record reflect that officers were in fact instructed on the time estimate. The only time constraint mentioned in the "Instructions" section is that "[clitizens will not be delayed longer than is reasonable to check driver licenses, registrations, proof of insurance certificates, and to observe for detectable violations visible from outside the vehicle." We believe there is potentially an enormous difference between a detention that is supposed to last only thirty seconds, and a detention that will last as long as it "reasonably" takes to check for all the above-listed violations.

35 The State's argument that the exteri- or examination of the vehicle was merely "cursory" also does little to mitigate our concern about the discretion of individual officers in conducting the checks. In fact, the requirement of a "cursory" examination raises more questions than it answers. The term "cursory" is never defined in the plan-but more troubling-it amounts to the only direct guidance given to officers on how they should inspect vehicles for any of the thirty exterior safety violations we have identified. Rather than provide a simple checklist of the most important lights and safety equipment to check, the State has left it to the officers in the field to decide how to conduct the inspection-so long as it complies with that officer's sense of what constitutes a "cursory" inspection of a particular vehicle.

36 Moreover, we doubt that it is possible to conduct all of the inquiries authorized at this checkpoint in just thirty seconds without investing officers with significant discretion to include or omit items authorized by the checkpoint plan. Common sense suggests that for many drivers, unaware that they will be required to stop at a police checkpoint, it takes at least thirty seconds to produce a license and registration for inspection, let alone the time required for officers to run the computer checks necessary to determine their validity. The same is true for inspecting proof of insurance and the validity of license plates. In this case, these documentation checks were in addition to the exterior examinations of vehicles; with thirty exterior safety device violations alone to detect, it seems highly unlikely that a "reasonable" inspection of a vehicle at a multiple purpose checkpoint could be conducted in just thirty seconds unless officers used discretion to treat vehicles differently, omitting some items on each inspection.

8. Lack of Guidance for Conducting Sobriety Checks

137 We also note that the checkpoint instructions do not mention how, when, or if officers are to conduct checks on driver impairment-an area in which significant discretion may be involved. Sitz 496 U.S. at 450-53, 110 S.Ct. 2481. To determine whether a particular driver in a stopped vehicle is impaired and should be singled out for additional sobriety testing requires an officer to make immediate and highly subjective judgments about the driver's appearance, attentiveness, speech patterns, breath smell, and reaction time. In some cases, such as where the smell of alcohol is obvious, this determination can be made very quickly. Id. at 447-48, 110 S.Ct. 2481 (noting twenty-five see-onds required to evaluate impairment at alcohol sobriety checkpoint). In other cases, however, an officer may have nothing more than a hunch that the driver is impaired by another drug (such as cocaine) that lacks alcohol's familiar odor. In those cases, given the highly subjective nature of the inquiry, the decision to single out a driver for more exhaustive sobriety testing may vary substantially from one officer to the next. Thus, the failure to include any procedures or criteria to determine driver impairment is a fatal flaw in this checkpoint plan. United States v. Huguenin, 154 F.3d 547 (6th Cir.1998) (noting that lack of appropriate operating procedures at sobriety checkpoint gave officers unfettered discretion and intruded on defendant's privacy). In the absenceof reasonable suspicion, drivers have the right not to be "subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Brown, 448 U.S. at 51, 99 S.Ct. 2637 (citing Prouse, 440 U.S. at 654-55, 99 S.Ct. 1391).

4. Limitation on Number of Checks Permitted

138 Finally, the State's argument that we have not placed a limit on the number of checks permitted at a highway checkpoint does not square with our opinion in DeBooy. In DeBooy, a majority of the court cast grave doubt on the constitutionality of multiple purpose checkpoints, holding:

Multi-purpose, general warrant-like intru-gions on the privacy of persons using the highways are unacceptable. The broader the authorization by the magistrate and the greater the discretion of the officer at the checkpoint, the more suspect the constitutionality of the checkpoint under article I, section 14.... This standard is necessary to safeguard the rights of the citizens of this state against unreasonable searches and seizures.

DeBooy, 2000 UT 32 at 11 31-82. We affirm that view today. Highway checkpoints are an extremely narrow exception to the general rule that reasonable suspicion is required before police are allowed to detain citizens, question them, and inspect their vehicles. Id. at 131. We permit checkpoints in order to advance the singular purpose of "promoting [the] safe use of the highways." Id. Each element of the checkpoint plan must be "narrowly tailored" to serve this limited interest alone. Id. Here, the checkpoint was ostensibly a drivers license check, but included a half-dozen other checks unrelated to driver license violations. We see no justification for allowing the state to use the interest in enforcing the drivers license requirement as the predicate for permitting officers to conduct investigations for which they would otherwise need a warrant, probable cause, or reasonable suspicion. For these reasons, multiple purpose checkpoints that permit numerous independent checks related to one another only through their loose connection to the operation of a vehicle on the highway are constitutionally infirm. Id. Given our conclusion that this checkpoint does not pass muster under the Utah Constitution or the governing statute as construed in DeBooy, we have no need to consider the additional bases on which Abell believes the checkpoint can be invalidated.

IV. ROLE OF THE MAGISTRATE

139 In light of the conclusions we have reached in the previous sections, we believe it is important to discuss briefly the role of the magistrate in authorizing administrative vehicle checkpoints like this one. Under our checkpoint statute, the initial responsibility for ensuring that a checkpoint plan is narrowly tailored to promote highway safety, minimizes officer discretion, and protects every citizens' legitimate expectation of privacy rests with the magistrate authorizing the checkpoint. Utah Code Ann. § 77-28-104 (1999). When reviewing the checkpoint plan, the magistrate must critically consider whether the checkpoint plan's legitimate purposes are closely tied to the use and safety of the highway, and not to other law enforcement interests. To ensure that the discretion of individual officers is minimized, the magistrate must be careful to consider whether the checkpoint plan provides for the regularized, systematic detention of vehicles so that all who are stopped will be treated in the same manner to the greatest degree possible. The magistrate should not hesitate to ask law enforcement to provide additional information concerning the specific nature of the inquiries and inspections.

CONCLUSION

40 The checkpoint in this case was virtually indistinguishable from the checkpoint we held unconstitutional in DeBooy. On paper, the checkpoint plan appeared to be a benign operation designed to advance multiple goals related to general highway safety. The ree-ord in this case reveals that the checkpoint plan submitted for the magistrate's approval differed substantially from how the checkpoint was actually operated-leaving officers in the field to decide how to conduct the checkpoint. We do not doubt that the state has a strong interest in drug interdiction. However, that interest must be pursued in such a way that important constitutional safeguards are not violated in the process.

41 Given the excessive level of discretion afforded to officers conducting the checkpoint, and the violations of our checkpoint statute, we hold that this checkpoint violated article I, section 14 of the Utah Constitution. Accordingly, "the evidence obtained against [the defendant] as a result of this ilegal checkpoint must be excluded," DeBooy, 2000 UT 32 at 133, and we reverse the trial court's ruling denying his motion to suppress.

142 Associate Chief Justice Durrant and Judge Orme concur in Chief Justice Durham's opinion.

1[ 48 Justice RUSSON concurs in the result.

WILKINS, Justice,

concurring in the result.

1 44 I coneur in the result reached in the lead opinion.

1 45 Our prior decision in State v. DeBooy, 2000 UT 82, 996 P.2d 546, is directly on point, and controlling. The checkpoint plan at issue was too broad, and gave the officers too much discretion with regard to the length, scope, and nature of the stop and search imposed on passing motorists. Having so decided, it is unnecessary to engage in the speculation Mr. Abell invites regarding other factors arising in this particular case that may, or may not, somehow constitute additional justification for deeming the checkpoint plan and its execution unconstitutional.

1 46 I have no particular difficulty with the warning signs selected to alert motorists to the likelihood of traffic disruption. Signs saying "checkpoint ahead" might well be more precise, but the signs indicating "road work ahead" and "right lane closed" used in this instance are generic enough to warn of traffic conditions without creating undue concern for the motoring public, not all of whom were likely to be stopped. I also see no legal consequence in this case to the mere presence in the vicinity of the checkpoint of trained drug dogs. The dogs do not act independently of the officers with whom they are assigned. The officers were part of the checkpoint. The dogs were not involved in any way in the checkpoint activity until the officers had arrived at a reasonable, articula-ble suspicion of drug violations by Mr. Abell. Had the checkpoint plan and procedure been otherwise constitutional, Abell could have been held and drug dogs brought to the scene.

147 Our task, as a court, is to protect the rights of citizens from those who would do them harm, both by criminal acts and by usurpation of the right to be left unmolested while traveling. That balance is a difficult one to strike, given that in order for a case to reach us on review, the citizen challenging the police action must have been guilty of criminal activity in the first instance. Rarely do cases involving deprivation of constitutionally protected rights reach us in which the citizen was found to have had no indications of criminal activity on or with them in the car. As a result, any time we act to define the limits of police power in such cireum-stances, we by necessity relieve just consequences imposed on one who has violated our laws. A reversal here does the same. The defendant admits to having violated the laws of our state, but because law enforcement officials responsible for crafting the checkpoint plan tried too hard to cover all of their bases, balancing the various mandates of this court and the federal courts in the process of doing their job of protecting the public, we are forced to not only grant relief to Abell, but also publicly criticize and correct otherwise law abiding, well intentioned, justly motivated officers of the law. Would it were that a better system existed for such review. Rather than pushing the envelope for more or greater scope of enforcement power, it would perhaps have been better for those drafting the checkpoint plan to have acted with caution, and for the magistrate to have exercised slightly more diligence in review and approval of the plan.

48 Having recused himself, Justice Howe does not participate herein; Court of Appeals Judge Gregory K. Orme sat.

      . Within the seven stated purposes, eleven checks were authorized. These include: (1) to inspect compliance with seat belt requirements; (2) to inspect compliance with child restraint requirements; (3) to determine if drivers are impaired; (4) to detect minors in possession of alcohol; (5) to detect minors in possession of controlled substances; (6) to conduct exterior examination of vehicles for required lights, turn signals, and other exterior required safety devices; (7) to conduct inspections of commercial vehicles; (8) to inspect validity of license plates; (9) to inspect validity of registration certificates; (10) to determine compliance with insurance requirements; and (11) to inspect driver licenses.

      . Article I, section 14 of the Utah Constitution states:
      The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.
      Utah Const. art. I, § 14.
      The Fourth Amendment to the United States Constitution states:
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
      U.S. Const. amend. IV.

      . In Edmond, the city argued that the checkpoint program was "justified by its lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations." Id. at 46, 121 S.Ct. 447. The Court rejected this argument because allowing such secondary purposes to validate an objectionable primary purpose would permit "law enforcement authorities ... to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check." Id. Thus, the Court resorted to a primary purpose analysis as a means of ensuring that "a program driven by an impermissible purpose may be proscribed while a program impelled by licit purposes is permitted, even though the challenged conduct may be outwardly similar." Id. at 47, 121 S.Ct. 447.

      . The Court noted it did not have to decide whether "the State may establish a checkpoint program with the primary purpose of checking licenses or driver sobriety and a secondary purpose of interdicting narcotics." Id. at 47, n. 2, 121 S.Ct. 447.

      . The Utah Highway Patrol had received a magistrate's authorization to conduct the administrative checkpoint pursuant to Utah Code Ann. section 77-23-104 (1999). The magistrate's approval allowed the UHP to conduct a multiple purpose vehicle checkpoint to "inspect and/or detect" the following violations:
      (a) License plates, registration certificates, insurance certificates, and driver's licenses.
      (b) Compliance with seat belt and child restraint laws.
      (c) Drivers that may be under the influence of alcohol and/or other substances.
      (d) Other alcohol and/or controlled substance violations.
      (e) Vehicle equipment violations.
      (f) Compliance with commercial vehicle regulations.

      . The checks authorized at this checkpoint are listed in the Background section of this opinion. The checks authorized in DeBooy appear in note 5. While the purposes given for the checkpoint are the same, the applications do differ in some respects. In DeBooy, the checkpoint stops were expected to last about two minutes, while in this case, the stops were estimated to last about thirty seconds. Brief for Appellee, at add. A, State v. DeBooy, 2000 UT 32, 996 P.2d 546 (No. 981172). Additionally, the plan submitted in this case does include additional information concerning the sequence of traffic to be stopped as well and a list of instructions for officers operating the checkpoint.

      . We also note that it was left to the officer's discretion whether to tell drivers why they had been stopped in the first place. When asked whether drivers were told that they had reached a highway checkpoint, Trooper Chugg testified that "I'm not sure that it was routinely mentioned" and drivers were only told the reason for the stop if they asked. The absence of such a basic assurance of uniformity is highly troubling. Given this level of primary discretion, we doubt that all vehicles coming through the checkpoint could be handled through a routinized thirty-second inquiry.

      . Chapter 41 of the Utah Code requires the following lights and other exterior safety devices and also regulates their use: (1) Head lamps (41-6-119); (2) Tail lamps (41-6-120); (3) Stop lamps (41-6-121.10(a)); (4) Supplemental rear stop lamps (41-6-121.10(b)); (5) Flashing turn signal lamps (41-6-121.10(c)); (6) Additional lamps and reflectors for large vehicles (41-6-122); (7) Lamps or flags on loads extending beyond rear of vehicle (41-6-128); (8) Parking lamps (41-6-129); (9) Spot lamps (41-6-131); (10) Warning lamps (41-6-133); (11) Back-up lamps (41-6-133.5); (12) Requirement to display two lighted headlamps (41-6-139); (13) Requirement on direction of display of high intensity beams (41-6-140(1}); (14) Prohibition of colored lights visible from front of vehicle (41-6-140(2)); (15) Prohibition of some flashing lights (41-6-140(3)); (16) Requirements for colors of rear-facing lamps (41-6-140(4)); (17) Prohibition of unapproved lighting equipment (41-6-141(c)); (18) Horns and warning devices (41-6-146); (19) Mufflers (41-6-147); (20) Mirror mounted on left side of vehicle (41-6-148(a)); (21) Rear view mirror (41-6-148(b)); (22) Bumpers (41-6-148.33); (23) Safety chains on towed vehicles (41-6-148.40); (24) Prohibitions on low-riding and high-riding vehicles (41-6-148.32); (25) Windshields (41-6-149(1)); (26) Window tinting (41-6-149(2)); (27) Windshield wipers (41-6-149(5)); (28) Requirements for tires (41-6-150); (29) Mudguards or flaps (41-6-150.10); (30) Duty to display lights and illuminating devices at night (41-6-118). Utah Code Ann. § 41-6-117 et seq. (1998 & Supp.2002).

      . This discussion is not intended to transform ''thirty seconds" into the threshold amount of time officers are permitted to detain vehicles at a highway checkpoint. We intend only to cast doubt on the proposition that a checkpoint authorized to conduct so many independent checks can do so in the time-frame suggested in the checkpoint plan.

      . We do not intend to cast doubt on the validity of sobriety testing as an acceptable purpose for conducting a checkpoint. DeBooy, 2000 UT 32 at 121. Rather, the concern we express here is that none of the instructions in the checkpoint plan provide any guidance on how, among the ten other checks, the determination of driver impairment is to be conducted. In Sitz, the Supreme Court approved of Michigan's sobriety checkpoints where a written plan was developed, regularized procedures were employed, and every driver was examined briefly for signs of intoxication. Sitz, 496 U.S. at 447, 110 S.Ct. 2481. The checkpoint plan at issue here does not include a requirement that each driver be examined for signs of intoxication and nothing approaching a "regularized" procedure for determining driver impairment was included in the checkpoint plan.

      . As we noted in DeBooy, however, this rule
      applies ouly to suspicionless, investigatory, nonemergency checkpoints We do not address, for example, emergency roadblocks that might be used to apprehend a fleeing felon. Nor do we address any existing authority to conduct roadblocks for traffic control purposes. Finally we do not address the constitutionality of fish and game roadblocks, or port of entry or commercial weigh and inspection stations instituted pursuant to other statutes.
      DeBooy, 2000 UT 32 at n. 11.