SUPPRESSABILITY OF A BREATHALYZER TEST
DISCLAIMER: Altiorem Legal Services cannot and does not provide legal advice. The information contained in this article should not be construed as legal advice, as it is not legal advice; the information in this article is provided for educational purposes only. Altiorem is not a law firm; Altiorem’s staff are not attorneys, cannot act as attorneys, and do not act as attorneys; and any information provided by Altiorem is not a substitute for legal advice from an attorney. Again, none of the information provided in this article should be construed as legal advice, and one should not rely on or use the information contained in this article in one’s legal case. However, if one chooses to use the information contained in this article on one’s legal case, they do so at their own risk and discretion, understanding and agreeing that nothing in this article constitutes legal advice in any way, shape, or form, and that none of the information contained in this article can guarantee a specific outcome, whether positive or negative, on one’s legal case. We bear no responsibility regarding the results and implications of one’s use of the information contained in this article on one’s legal case, or one’s use in general for any purpose.
SUPPRESSING A BREATHALYZER TEST
Driving a car is an easy way to get around, but it can lead to trouble when you are pulled over for driving under the influence. Driving under the influence and other related crimes can have a detrimental impact on your future; your license could be suspended, and you could be facing jail time. However, there are ways to suppress evidence obtained via a breathalyzer test. Read below to find out more.
It is important to note that in the State of Utah, a person operating a motor vehicle is considered to have given his or her consent to a chemical test or tests of his or her breath, blood, urine, or oral fluids for the purpose of determining whether he or she was operating or in actual physical control of a motor vehicle while:
(i) having a blood or breath alcohol content statutorily prohibited under Section 41-6a-502, 41-6a-530, or 53-3-231;
(ii) under the influence of alcohol, any drug, or combination of alcohol and any drug under Section 41-6a-502; or
(iii) having any measurable controlled substance or metabolite of a controlled substance in the person’s body in violation of Section 41-6a-517.[1]
If a person has been placed under arrest, and has then been requested to submit to a chemical test but refuses to submit to the chemical test, it may result in (1) criminal prosecution; (2) revocation of his or her driver’s license to operate a motor vehicle; (3) a five to ten year prohibition of driving with any measurable or detectable amount of alcohol in his or her body depending on his or her prior driving history; and (4) a three year prohibition of driving without an ignition interlock device.[2]
BREATHALYZER CALIBRATION
Utah Code § 41-6a-515 states that,
1. the commissioner of the department shall establish standards for the administration and interpretation of chemical analysis of a person’s breath or oral fluids, including standards of training.
and,
2. [i]n any action or proceeding in which it is material to prove that a person was operating or in actual physical control of a vehicle while under the influence of alcohol or any drug or operating with a blood or breath alcohol content statutorily prohibited, documents offered as memoranda or records of acts, conditions, or events to prove that the analysis was made and the instrument used was accurate, according to standards established in Subsection (1), are admissible if:
(a) the judge finds that they were made in the regular course of the investigation at or about the time of the act, condition, or event; and
(b) the source of information from which made and the method and circumstances of their preparation indicate their trustworthiness.
If the judge finds that the standards established under Subsection (1) and the conditions of Subsection (2) have been met, there is a presumption that the test results are valid, and further foundation for the introduction of evidence is unnecessary.
However, if the standards are not met during your breathalyzer test, then the evidence could potentially be suppressed. A breathalyzer device needs to be regularly calibrated and tested to make sure it is functioning correctly. If (1) the breathalyzer device is not up to date; if (2) the officer who has detained you is not trained in administering breathalyzer tests; or if (3) the breathalyzer device keeps failing when the officer is trying to administer the test, those are grounds upon which the evidence obtained through a breathalyzer test could be suppressed.
STANDARDS FOR A BREATHALYZER TEST
In most traffic stops that involve driving under the influence, there is a fifteen-minute observation period before a breathalyzer test is administered. The purpose of the observation period is to ensure that the suspect does not introduce anything into his or her mouth that might taint the test results of the breathalyzer device. While this requirement serves to ensure that the suspect places no food, drink, or smoke into his or her 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.[3]
The purpose of the observation period is satisfied if,
(1) the suspect was in the officer’s presence for the entire 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 observation during the observation period.[4]
If you are not provided with this fifteen-minute observation window, your breathalyzer test results could be suppressed—especially if (1) you were not within the officer’s presence the whole time; if (2) you vomited; if (3) you burped/regurgitated; or even if (4) you had gum or food in your mouth. If you are sitting in your vehicle without the officer present during this fifteen-minute waiting period, then there is no way the officer could have observed you; you must be in the officer’s presence for the entire fifteen-minute observation period; if not, then the breathalyzer test results could be suppressed.
CONTACT US
If you are interested in retaining our services to suppress the results of a breathalyzer test and dismiss your criminal case, we can be contacted at (801) 855-6541 (text or call) and at contact@altioremlegalservices.com. If you have a project in mind that you would like us to work on, please click here to send us a project request and get a quote; alternatively, you can send us an email detailing the work you need performed, and we will write back to you promptly with a quote.
[1] Utah Code § 41-6a-520.
[2] See id.
[3] See State v. Vialpando, 2004 UT App 95, ¶ 18, 89 P.3d 209. (citing State v. Gardner, 1998–NMCA–160, ¶ 12, 126 N.M. 125, 967 P.2d 465).
[4] See id.
