IN THE ROY CITY JUSTICE COURT IN AND FOR WEBER COUNTY, STATE OF UTAH

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RANDALL RICHARDS #4503 of ALLEN, RICHARDS & PACE

Attorney for Defendant/Appellant 2550 Washington Boulevard, Suite 300 Ogden, Utah 84401

Telephone: (801) 393-9600 lawyer@arplegal.com

IN THE ROY CITY JUSTICE COURT

IN AND FOR WEBER COUNTY, STATE OF UTAH

ROY CITY, Plaintiff, vs.

D M ,

Defendant.

: : : : :

MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS PORTABLE BREATH TEST

RESULTS

Case No.

Judge: TRENT NELSON

The Defendant, D M , by and through her counsel, Randall W Richards and pursuant to Rule 12 of the Utah Rules of Criminal Procedure, submits this

memorandum for the purpose of suppressing the results of the Portable Breath Test performed in this case on September 2018.

FACTS

On September 2018 Officer Pearson stopped D M and her friend A , and claimed to have smelled alcohol. The officer wrote in his police report that could smell an odor of alcohol coming from both and asked if they had been drinking. Both originally denied the drinking. The officer then asked both to blow into a Preliminary Breath Test device (hereinafter referred to as PBT). Both blew into the hand

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held device and the test showed positive at a level of .04 for A , and .09 for D . The officer asked them why they had lied, and A admitted to having drank, but D remained silent. The officer then cited both for underaged drinking and released them on the citation.

ARGUMENT

Under Utah law, it is mandatory that the subject taking an Intoxilyzer be under observation for a minimum of fifteen minutes prior to the administration of the test.

Additionally, Under Utah Administrative Rules 714-500-1 through 714-500-10 sets forth the requirement of any breath testing instruments that can be used for evidentiary purposes. Only approved instruments with proper ongoing calibration and maintenance are allowed for court purposes. Currently there are no portable breath testing devices on the list of approved breath instruments for the State of Utah. Therefore, any evidence obtained from a non-approved devise must be held inadmissible for “evidentiary purposes”, which precludes the introduction of evidence of a PBT in court.

Nationwide, there is a split of decisions with regards to the use of PBT evidence even for establishing probable cause to administer a blood or Intoxilyzer test. Utah has yet to make that determination, as the most recent case of State v. Manwaring, 2011 UT App 443, ¶ 29, 268 P.3d 201, 208 failed to address the issue due to inadequate briefing.

Other states, however have generally held a PBT test is admissible for probable cause only. In People v. Rozela, 345 Ill. App. 3d 217, 226, 802 N.E.2d 372, 379 (2003) the

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Illinois court held,

Likewise, in State v. Scheffert, 279 Neb. 479, 488, 778 N.W.2d 733, 741 (2010) the Nebraska Supreme Court held, “Nebraska case law has long held that a PBT is admissible for the limited purpose of establishing probable cause.”

The Supreme Court of Washington, however, in Thompson v. State Dep't of Licensing, 138 Wash.2d 783, 982 P.2d 601, 603 n. 1 (1999) held that the results of PBTs

are inadmissible even to establish probable cause. Given the split decisions in the various State courts with regards to the admissibility of PBT results simply to establish probable cause, which is the lowest degree of proof in the legal system, logic would dictate that admissibility for establishing proof beyond a reasonable doubt is not allowed in any jurisdiction.

Additionally even approved breath devises require the completing of a 15- minute observation period immediately before the testing for the result to be admissible.

Normally, the officer would check the person’s mouth at the station and observe the person while the machine warms up. Utah Appellate Courts have always recognized that even the more reliable intoxilyzer procedures require a 15-minute deprivation period prior to giving a breath test. See, Salt Lake City v. Womack, 747 P.2d 1039 (Utah 1987).

Utah follows the fifteen minute "Baker" rule, set forth in State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 811 (1960). See, Womack, 747 P.2d at 1041. In Baker an expert for the state testified that a breathalyzer test result was "wholly unreliable" unless four conditions were satisfied:

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"(1) That the machine was properly checked and in proper working order at the time of conducting the test;

(2) that the chemicals employed were of the correct kind and compounded in the proper proportions;

(3) that the subject had nothing in his mouth at the time of the test and that he had taken no food or drink within fifteen minutes prior to taking the test, and the subject has not burped or regurgitated any stomach content or alcohol during the fifteen minute period.

(4) that the test be given by a qualified operator and in the proper manner. Baker, 355 P.2d at 810 (points placed in paragraph form). The Baker court found that the fifteen minute observation period was obligatory. Baker, 355 P.2d at 812 (citing, Robert L.

Donigan, Chemical Tests and the Law, 173 (R.L. Donigan, general counsel for the Traffic Institute of Northwestern University, recognizing the lapse of time

be "at least fifteen minutes.")

The Utah Supreme Court, in Womack, specifically cites Baker, noting "test subject must be kept under observation for at least fifteen minutes prior to the test to insure that he has not ingested anything and to allow any alcohol present in the mouth to be

absorbed to ensure a reliable breathalyzer result." Womack, 747 P.2d at 1041.

It is mandatory that the subject taking a Breathalyzer/Intoxilyzer be under

observation for a minimum of fifteen minutes prior to the administration of the test, and that, at the time the test is given, there be nothing in the subject’s mouth. The fact that the majority of the population is unfamiliar with the Baker rule makes it even more likely for someone like the Defendant to inadvertently invalidate the test results. Therefore, it is

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not only prudent, but required that the arresting officer is attentive and follows proper police procedure during this observation period, which officer Pearson failed to meet.

In the recent decision of State v. Relyea, 2012 UT App 55, ¶ 29, 288 P.3d 278, 287, confirm that even with the Intoxilyzer 8000, the 15-minute Baker period needs to be observed. In that case the Court stated,

¶ 29 Utah courts have adopted three foundational requirements to determine whether the results of a Breathalyzer test are admissible into evidence. See In re Oaks, 571 P.2d 1364, 1367 (Utah 1977) (Maughan, J., dissenting) (citing State v. Baker, 56 Wash.2d 846, 355 P.2d 806, 809–10 (1960)); State v. Vialpando, 2004 UT App 95, ¶ 14, 89 P.3d 209.

In Vialpando, those requirements were applied to the results of an Intoxilyzer, without analysis of whether the rationale was equally

applicable. See Vialpando, 2004 UT App 95, ¶¶ 13–19, 89 P.3d 209; see also supra note 5. First, the machine must have “been properly checked by a trained technician, and ... in proper working condition at the time of the test.” See Vialpando, 2004 UT App 95, ¶ 14, 89 P.3d 209. Second, the test must be “administered correctly by a qualified

operator.” Id. Third, a police officer must have “observed the defendant during the fifteen minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time.” Id.

In the present case there is no question that the officer did not observe the 15-minute Baker period prior to the administration of the portable breath test, as is required for the use an approved breath testing instrument, since the officer stated that he administered a PBT to determine if alcohol was present in Ms. M ’ system, as stated in the police report. Thus, any evidence from that device would be inadmissible in court. Furthermore, the officer cannot establish that his device was properly calibrated and checked on a regular basis with appropriate chemicals as required by law for admissibility. Further, the officer did not observe the Baker 15-minute observation period. This is while utilizing ‘the unreliable portable breath test,’ rather than the more reliable Intoxilyzer device. The reason for this is to prevent a foreign substance such as

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candy, gum, or any other carbon-based substance from contaminating the testing apparatus.

In State v. Carson, 133 Idaho 451, 988 P.2d 225, 277 (Ct.App. 1999), the Court held that observing a suspect while riding in the backseat does not meet the observation requirements. Further, State v. Korsakov, 34 S.W.3d 534, at 540 (Tenn. Crim. App.

2000) held that watching the defendant in the rearview mirror while filling out paperwork in the front seat of the police car did not meet the deprivation period

requirements. That same case holds that being in the presence of the officer while in the backseat of the patrol car did not meet the deprivation requirements. Id. The Court held that “an unblinking gaze for twenty minutes is not required. However, the officer must be watching the defendant rather than performing other tasks.” Id.

These, and numerous other State Supreme Courts, have followed Utah’s position in requiring the 15-minute Baker period be observed even on an Intoxilyzer, let alone a PBT.

The officer’s failure to comply with the first, second, third and fourth mandatory requirements under Baker renders the test invalid. Therefore, the results of the

breathalyzer should not be introduced or admitted into evidence in the trial against the defendant.

CONCLUSION

The prosecution should not be allowed to introduce at trial the PBT results, as the officer did not use a State authorized device and failed to comply with the mandatory observation requirements for a valid test result.

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Respectfully submitted this 13thday of September 2019.

/s/ RANDALL W RICHARDS RANDALL W RICHARDS

Attorney for Defendant

CERTIFICATE OF MAILING

I hereby certify that I mailed a true and correct copy of the above and foregoing MEMORANDUM IN SUPPORT OF MOTION TO SUPPRESS … to:

postage prepaid, on this 13thday of September 2019.

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