If the trooper givingme abreathalyzer test did not wear gloves, is this legal?

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If the trooper givingme abreathalyzer test did not wear gloves, is this legal?

Apron arriving at the state patrol barracks, the trooper gave me 2 tests in less than 20 minutes. He did not wear gloves in either test. He placed the tips on the machine with his bare hands. Is this evidence contaminated and nontarnishable?

Asked on January 19, 2012 under Criminal Law, Ohio

Answers:

Russ Pietryga / Pietryga Law Office

Answered 9 years ago | Contributor

In Utah, as with most states, the admissibility of a breath result is conditioned on the officer complying with a set of standards.  In Utah, wearing or not wearing gloves does not effect the admissibility of the breath result. 

The Utah Court of Appeals ruled that in order to ensure that breath test results are presumed valid, Utah Prosecutors must present evidence of the following: (1) the breath machine had been properly checked by a trained technician, and that the breath machine was in proper working condition at the time of the test; (2) the breath test was administered correctly by a qualified operator; and (3) a peace officer observed the defendant during the fifteen minutes immediately proceeding the test to ensure that the defendant introduced nothing into their mouth during that time.[1]

            In order to establish that the breath machine had been properly checked by a trained technician, and that the breath machine was in proper working condition at the time of the test, Utah Prosecutors will present the following evidence: (1) Certification Report; (2) Operational Checklist; and (3) Test record printout.

            In order to establish that the breath test was administered by a qualified operator, the State of Utah will present the administrating officer’s current certification to administer the breath test. 

            In spite of this, in Utah v. Keith, the Defendant argued that the breath test should be suppressed because, at the time of the test, the administering officer’s certification was not current.  The Utah Court of Appeals stated, “while full compliance with the standards, coupled with a finding as to the additional safeguards establishes the evidence’s foundation, failure to fully comply with such standards does not necessarily destroy the admissibility of the breath test evidence.  Noncompliance with the standards simply means that the foundation and validity of the evidence may not be presumed, but rather that they will have to be established in order for the evidence to be admitted.”  The peace officer’s lack of current certification did not foreclose the possibility that a proper foundation could otherwise be established to admit the breath test result into evidence.  Thus, the presumption that the test results were valid did not apply, and Utah Prosecutors are forced to bear the burden of establishing the accuracy of the breath test through expert testimony.

            In order to establish that a peace officer observed the defendant during the fifteen minutes immediately proceeding the test to ensure the defendant introduced nothing into their mouth during that time, Utah Prosecutors will present evidence that the peace officer complied with the “Baker Rule”.  The “Baker Rule” came from a 1960 Washington Supreme Court Case.  In Washington v. Baker, the Washington Supreme Court ruled that the Defendant was entitled to a new trial because Washington Prosecutors failed to establish that the defendant had nothing in his mouth at the time of the test and had not ingested food or drink within fifteen minutes prior to taking the breath test. 

            To be in compliance with the “Baker Rule” a peace officer must do the following: (1) Examine the suspect’s mouth for the presence of any foreign matter prior to administering the breath test; and (2) Observe the suspect for fifteen minutes proceeding the breath test, insuring the following:  (1) the suspect was in the peace 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 fifteen minute period; and (3) nothing impeded the peace officer’s powers of observations during the fifteen minute period.

            In Utah, the observation requirement was challenged in Utah v. Vialpando.  In Vialpando, the Utah Court of Appeals defined the observation period.  In Vialpando, the Utah Court of Appeals stated that the observation period is to ensure that a suspect does not introduce anything into their mouth that might taint the test results.  While this requirement serves to ensure that the suspect places no food, drink, or smoke into their 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.  Moreover, the Utah Court of Appeals stated, “We do not believe that this requires the undivided attention of the observing officer.  Instead, the level of surveillance must be such as could reasonable be expected to ensure that no alcohol has been introduced into the suspect’s mouth, from the outside or by belching or regurgitation, during the entire observation period.  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.”

            In Vialpando, the trooper placed the suspect next to him in the front passenger seat of the patrol car, with the suspect’s hands handcuffed behind his back, preventing the suspect from placing anything into his mouth.  The suspect sat next to the trooper for the entire fifteen-minute period, and during that time the trooper monitored, both visually and aurally, to ensure that the suspect’s mouth remained clear.  The late hour and minimal traffic presented little or no distraction to the trooper during the observation period, allowing the trooper to focus on driving and observing the suspect.  Therefore, the purpose of the observation period was satisfied and that the breath test results were reliable.

 

Hope this helps.



[1] State v. Vialpando, 89 P.2d 209 (Utah Ct. App 2004)

 


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