Hire a 5 star DUI attorney (AVVO rated) in the Salt Lake City area. We have the experience you need for your DUI / DWI case. Below is some explanation on the police officers having to observe you before taking a breath test. This is also known as the “Baker” time period. If you have been charged with a DUI in Utah, call today for a free consultation at (801) 475-0123.
Before intoxilyzer breath test evidence may be admitted, the State must establish and the trial court must find that there exists a proper foundation for that evidence. To establish that foundation under the rules first laid out in State v. Baker, 355 P.2d 806 (Wash. 1960), the State must prove that an officer conducting an intoxilyzer breath test observed the defendant for fifteen minutes before administering the test. Because the arresting officer in this case failed to comply with Baker’s observation requirement, the test and its results are inadmissible and should be suppressed.
The intoxilyzer breath test and its results are inadmissible here because Trooper Riches failed to comply with the observation requirements of the test. “To assure the reliability of any test result of a breathalyzer admitted into evidence, the courts have required as a prerequisite that the state adduce certain foundational evidence.” In re Oaks, 571 P.2d 1364, 1367 (Utah 1977) (Maughn, J., dissenting). Specifically, the State must present evidence that
(1) the intoxilyzer machine had been properly checked by a trained technician, and that the machine was in proper working condition at the time of the test; (2) the test was administered correctly by a qualified operator; and (3) a police officer 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.
State v. Vialpando, 2004 UT App 95, ¶ 14, 89 P.3d 209. At issue here is the third requirement—the observation period.
The purpose of the observation period is to ensure that a defendant does not introduce anything into his mouth that might taint the test results. While this requirement serves to ensure that the defendant places no food, drink, or smoke into his mouth during the observation period, its most important function is to ensure that any alcohol in a suspect’s mouth is absorbed into the system before the test is administered.
The observation requirements are satisfied if “(1) the suspect was in the officer’s presence for the entire [fifteen-minute] period; (2) it is clear that the suspect had no opportunity to ingest or regurgitate anything during the minimum observation period; and (3) nothing impeded the officer’s powers of observations during the observation period.”
Here, a Trooper administered the intoxilyzer breath test to a suspect without observing him for the requisite fifteen-minute period. After initially checking the suspect’s mouth, the Trooper left him alone, unsupervised in his patrol car, while a search was conducted of the suspects vehicle. The Trooper never checked the suspect’s mouth again. Because the Trooper failed to comply with Baker’s observation requirement, the test and its results are inadmissible. See In re Oaks, 571 P.2d at 1367 (noting that the State must produce prima facie evidence that requirements were met “before the result of a breathalyzer test can be admitted into evidence”).
Therefore, it is important that once you are charged you go home and write down everything you can remember including what the officer told you or said to you throughout the process. Give us a call, we can help.
