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Jason Schatz was successful in having his client’s .353 breath test result (that’s more than 4 times the legal limit!) excluded by winning a Motion to Suppress based on a Baker violation.
Pursuant to what is known as the Baker rule, an officer must first check a suspect’s mouth to make sure that they do not have any foreign objects, gum, chewing tobacco, breath mints, etc., and then must observe the Defendant for 15 minutes before blowing into the breath test machine to make sure that the person has not burped, hicupped, or otherwise regurgitated any alcohol fluid from the stomach back up into their mouth.
In this case, Jason’s intricate knowledge of the operation of the Intoxilyzer 8000 was critical to discovering the Baker violation and winning the motion to suppress. When the officer attempted the first breath test on the client the machine registered an error called an “Invalid Sample”. Those who are utterly familiar with the working of the Inytoxilzer, like Jason, know that this means the machine most likely detected residual mouth alcohol which is often caused when an individual belches, burps, hiccups, or vomits prior to blowing into the Intoxilyzer machine. However, the arresting officer threw away the receipt for the first test and conducted a second test only 3 minutes after the first failed attempt. Jason was able to discover this mistake by subpoenaing the breath testing machine’s maintenance and calibration records from the Department of Public Safety (something very few attorneys in Utah do, but which we do in every single DUI case our firm handles involving a breath test). By reviewing those records, he could see, for the first time, that there was a failed first attempt. Standard operating procedure in a situation where the suspect belches, hiccups, or vomits, or when the machine itself detects residual mouth alcohol, is to recheck the mouth and restart the 15 minute observation period over. In this case, the officer did not start the 15 minute period over and simply administered a second test, and for that reason the Judge found that the Baker rule was not properly complied with and therefore, the test result could have been affected, and therefore, the test result was inadmissible!!!!
The Motion to Suppress was granted and the prosecutor is prohibited from using the Defendant’s breath test to prosecute her in court! Lesson to be learned, a great DUI attorney not only knows how the Intoxilyzer machine works, but must be willing to take the time to do a thorough investigation to uncover the mistakes hidden under the surface of the case.