Earlier this week, Jason Schatz appeared before the Utah County Justice Court for an Oral Argument on a Baker Motion to Suppress the Breath Test. As explained in a previous post the Baker Rule requires that in order for a breath test to be admissible at trial, and before an officer administers the breath test to a subject, the 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, the issue was whether or not the officer conducted a FULL AND COMPLETE 15 minute observation of the Defendant prior to the test. First of all, the officer did a very poor job of filling out his report by inaccurately recording several times on the report when the breath test was performed. He back tracked and tried to explain that the time he said the breath test was done was actually the time when he started the 15 minute period. When asked what clock or timepiece he looked at to get the start of the Baker period he said he couldn’t remember. Jason eventually got the officer to admit that he did not use the same time piece to record the start and end of the 15 minute period and that because he used different “clocks” for these times and never checked to make sure the two different clocks were set to the same time, he could not say for certain whether a full 15 minutes was followed because the clocks could have been off by several minutes.
The Judge whole-heartedly agreed with the argument and advised that the officer could have every easily used the same time piece. His failure to take that simple step, to ensure something so important as the observation of a full 15 minute Baker period, and the State’s failure to lay proper foundation to admit the breath test, led the Judge to grant Jason’s Motion and Suppress the .191 test result!