At the driver license hearing in this matter, the arresting officer testified under oath that he was properly certified to operate the Intoxylizer machine at the time of the Defendant’s arrest. Unbeknownst to the officer, I had already subpoenaed the officer’s Peace Officer Standards and Training records, which revealed that the officer’s certification to operate the Intoxylizer machine—as required under Utah Administrative Rule 714-500—had lapsed three weeks before the Defendant’s arrest. I pointed this fact out to the hearing officer and showed her the POST training printout clearly indicating that the officer’s certification had expired, and we won the driver license hearing and the Defendant’s license was not suspended. The next day the arresting officer emailed me to thank me for pointing out to him that his certification had expired. Over the next year and a half, we litigated several issues in the case, including a Motion to Suppress the Breath Test result due to the fact that the officer’s certification had lapsed. Despite the fact that there was no dispute that the officer’s certification to operate the Intox machine was expired on the date of the Defendant’s arrest, the Court refused to suppress the breath test. The case finally came before the Court for a Jury Trial on November 19, 2009. At the hearing the officer admitted to the jury that his certification was expired and that he had emailed me to thank me for pointing this out to him; otherwise, he would have continued to do breath tests without proper certification. In closing I argued that police officers must be held to the same standard as other Utah citizens in that they too must follow the law. I further argued that if the jury believed that the officer did not follow the law, it was their duty to impose a consequence, and they should not consider the breath test result—even though the prosecution had established that the machine was functioning and calibrated properly, that the officer had operated the machine correctly, and the test result indicated a BAC of .115. After approximately 90 minutes, the jury returned a verdict of NOT GUILTY on the DUI charge.
This goes to show that even police offices are not above the law! And the jury chose to send that message in this case: Officers will be held to the same standard as everyone else!