Alternative Facts Used to Advance Utah’s .05 Alcohol Limit Bill?
Anyone who is familiar with criminal defense work or an attorney who practices criminal defense knows that each and every motion to suppress win is hard-fought, and the wins don’t come easy. So when Jason Schatz won all 3 motion hearings in a single day on Thursday, August 16th, it was cause to celebrate. And the wins couldn’t have come for three better clients.
The First win came in the Eighth District Court in Duchesne. In the Justice Court, my client was represented by another attorney who not only failed to identify and argue the suppression issue on the breath test, but he also botched the trial so badly that the Defendant was convicted, served 2 days in jail, and had his driver license suspended for 120 days before he hired me to appeal the case. On appeal, the prosecutor first refused to offer a plea deal. Then, after we filed our Motion to Suppress the breath test, he offered to reduce the charge to Impaired Driving. After consulting with my client, we both agreed to go for it and argue the motion to suppress the breath test. In order for a breath test to be admitted to the jury, the prosecution must show compliance with a thing called the “Baker Rule,” named after a case from Washington State in 1960 called Washington v. Baker. The Baker rule requires that the prosecution be able to prove that the machine used to test the Defendant’s breath was functioning and calibrated properly, that the cop who operated the machine was qualified to do so, that the officer checked the Defendant’s mouth and made sure it was clear of all foreign objects and/or substances, and finally that the Defendant remained in the officer’s immediate presence for the 15-minute period immediately prior to administering the breath test. Our primary challenge in this case was that the officer did not observe the Defendant for a full 15 minutes after he had the Defendant clear the chewing tobacco from his mouth. The purpose of the mouth check and observation period is to make sure that any objects that could have soaked up or absorbed alcohol while the Defendant was drinking are removed and that the Defendant did not burp, belch, hiccup, vomit, or otherwise regurgitate any fluid that may contain alcohol into the Defendant’s throat or mouth, as it may cause residual mouth alcohol to contaminate the breath sample and return an falsely high result. My client had supposedly blown a .187 breath test at the jail; however, with some skillful cross-examination and a police report that was full of inaccuracies, especially as they related to the times when the officer did certain things during the course of the Defendant’s arrest and subsequent breath test, the Court eventually found that the officer’s times were so inconsistent and so inaccurate that they could not prove that a full 15-minute observation period had been followed, and the Judge threw out the entire breath test. Win # 1 for the day!
The Second win came on a Motion to Suppress Evidence Based on Lack of Reasonable Suspicion to Initiate a Traffic Stop. The video from the arresting Trooper’s patrol car showed that and the Trooper admitted on the stand that he had sped up to over 65 MPH in a 35-40 MPH zone after seeing my client driving on State Street in Salt Lake City just so he could get close to my client’s car and check it out—all of this, despite the fact that he had not observed my client commit any traffic violations. He then claimed that after he sped up directly behind my client and got with a few car lengths of her, he then proceeded to pass her to the right as she crossed the lane line to the left of her vehicle by an inch or two for a split second. In my opinion the video showed my client’s car move to the left just as the officer moved right to pass, and she barely drove on the divider line. The officer then claimed this minor violation of supposedly driving slightly over the line for a second was a sufficient basis to stop the vehicle. The Judge disagreed and found that my client’s actions of moving to the left side of her lane and touching the line briefly was the result of the officer speeding up behind her and then passing her to the right. The judge found that such a maneuver by the driver was reasonable and innocent and therefore could not serve as a basis for a traffic stop. The judge granted the Defense’s motion to suppress ALL of the evidence obtained by the officer after the initial traffic stop. The Judge also read a statute that states that cops must follow the same rules of the road as any other driver unless they are in pursuit of a vehicle that has committed a traffic violation or under other limited circumstances and chastised the cop for going more than 25 MPH over the posted speed limit for no apparent reason. Way to go, Judge!!! Goes to show that cops are not above the law!
Finally win #3 for the day came in front of the same Judge as Win #2 did. In that case the Judge denied our Motion to Suppress Based on Lack of Probable Cause to Arrest but granted our Baker motion that was similar to the one we filed in Win #1 above. In this case the Judge found that the officer’s failure to use the same timepiece to record the beginning of the 15-minute Baker observation period to the time the Defendant actually blew into the machine—or at the very least to compare the two timepieces to make sure the time on both was consistent—meant the prosecution was unable to prove that a full and complete 15-minute period was observed. The prosecutor tried to argue that “it was close enough,” but the Judge disagreed because the alleged observation period was only 17 minutes, and if the officer’s radio clock and the Intoxilyzer machine were off by only a few minutes, the full 15-minute period would not have been observed. Since it was the prosecutor’s burden to show the full 15-minute period was observed, they had failed to meet their burden, and the breath test result (.12) was suppressed.
As a general rule I try not to schedule more than one motion hearing with the same judge on any given day because if they grant the first one, they are less likely to let you win a second done on the same day. I proved that theory wrong that day.
Thursday’s score: Defendant’s – 3, Cops – 0. Good Guys Win!!!