Does Putting Fingers in One's Mouth Violate Baker? - American Fork City v. Barbour

 It seems our Court of Appeals is focusing on the 15 minute Baker observation period for breath tests with a second decision striking down a breath test in just the couple months.The case is an ineffective assistance of counsel claim and approached under that framework. However, there were two main issues discussed by the Court.  

First, the Court of Appeals analyzed is whether the Baker period was properly observed when the suspect was chewing on his fingernails. For all intents and purposes, all other aspects of Baker were fulfilled adn the Court held that a suspect introduced fingernails into his mouth in violation of the requirements of Baker, and counsel was ineffective for not filing a motion to suppress the breath test based upon that aspect alone. Remember, for an ineffective assistanced claim to succeed, a defendant is required to "demonstrate a reasonable probability that but for counsel's errors, the result would have been different." So, while it is not a specific ruling on the merits of the Baker challenge, it certain gives us guidance on how the Court of Appeals would rule on this issue in the future. And, one of the requirements for Baker is “a police officer observed the defendant during the fifteen minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time.” (Quoting State v. Vialpando, 2004 UT App 95, ¶ 14, 89 P.3d 209) In this instance, the introduction of the fingernails while chewing for multiple minutes during the observation period would negate the requirements for Baker, and therefore, result in losing the breath test. 

The second part of the analysis, and what might be more problematic, was a sufficiency of the evidence review for the second prong of the DUI statute and "incapable of safely operating a vehicle." The Court of Appeals does this analysis in a similar way as it did in State v. Harvey, 2019 UT App 108, 446 P.3d 125. These holdings will certainly make the bar higher for proving beyond a reasonable doubt that a person is "incapable of operating a vehicle." However, we should push back if defendants try to use these in probable cause determinations, and other similar pretrial settings. 

This is an important case we need to be aware of and helping our officers know the proper protocol for administering a breath test. When done correctly, we have very favorable legal standing both in statute and case law to support the breat test not only coming in as evidence, but coming in with a presumption of validity. (See 41-6a-515) 

However, it's clear the Court of Appeals is going to be looking at Baker observations with a critical eye, and when we stray from a strict following of the protocols, we will likely be losing breath test results in the future. 

You can see the full opinion here: American Fork v. Barbour

Mouth Checks and Breath Tests Under Baker

 The Utah Court of Appeals recently published an opinion that will impact our breath tests in DUI cases cases going forward. The decision came in State v. Montgomery, 2026 Ut App 77. 

The relevant basic facts of the case holding were that after the suspect was lawfully arrested, the officer completed a 30-minute observation prior to the breath test, but that no initial mouth check was done to start that observation. This is where this case hinges. No other aspect of the case was found problematic, however, the failure to do an initial mouth check became fatal to the admissibility of the ultimate breath test. 

Every officer that has been training on operation of the Intoxilyzer has been trained to do an initial mouth check prior to the required 15-minute observation period. We have had this issue pop up regularly enough around the state where officers were failing to do the mouth check. The basic argument at suppression hearings has been that while it is part of their training and certainly a best practice, the initial mouth check is not required for the intoxilyzer to properly issue an accurate reading on the person's BAC. We have won some of those motions around the state, and we have lost some of those motions from around the state. However, the Court of Appeals has now articulated this initial mouth check as a required factor for admissibility of a breath test. The holding says that "an initial mouth check is required to satisfy the third foundational requirement for admissibility of breath alcohol test results." 

While always a part of the training on the Intoxilyzer, officers have at times missed this mouth check either out of error or by habit. This failure to do an intial mouth check is now a fatal blow to the breat test results and we need to make sure our officers know this going forward. 

You may read the full opinion here: State v. Montgomery. 

Refusing a Chemical Test Warrants - State v Allen

The basic facts of this case really don't have an impact on why this case is important for your review. The real issue here is that the Refusing a Chemical Test statute in 41-6a-520.1 requires that warrant issued to "draw and test" the blood. The warrant in this case only said to "draw" the blood. Defendant argued that the element requiring a warrant issue to draw and test the blood was not proven beyond a reasonable doubt, and the Court of Appeals agreed. 

This feels like it would be a big deal. However, a couple years ago this issue was brought to our attention and the template for DUI blood draws that all officers are using was updated to include "draw and test." 
This was a 2022 case that happened before the template was updated. There still may be older cases floating around and if this comes up, you'll want to look closely at the language in the warrant itself. The statute's plain language is clear, the warrant must be to "draw and test" the blood. 

You may review the full opinion here: State v. Allen

License Plate Checks and Warrants - State v. Anderson

This is a good case that re-emphasizes the holding in State v. Oryall, 2018 UT App 211 regarding an officer's ability to run license plate checks, and to act upon the information the officer receives. 

In the present case, defendant was at a gas station and an officer was randomly running license plates on vehicles at the gas station. Officer observed that the vehicle was registered to "Donald Anderson" and upon further checks, realized Donald Anderson had active warrants for his arrest. Once defendant was done pumping gas he pulled up to a stall to go into the gas station. Officer pulled up either near or behind defendant (there was a dispute on which was correct at the evidentiary hearing), and approached the driver side door. Through an open window officer asked if he was "Donald Anderson," which defendant confirmed and immediately proffered to the officer that he had a warrant for his arrest. 

Defendant argued that the search violated the consitution as he had no reasonable suspicion to do so, and that parking behind him was an illegal seizure as well. The Court of Appeals rejected both arguments. People do not have a reasonable expectation of privacy in their motor vehicle records, and therefore, this is not an illegal search under the Fourth Amendment. Also, it is a "commonsense inference" that the registered owner of the vehicle is the one driving it, and therefore, even assuming defendant was seized, it was a proper seizure. 

There is some GRAMA discussion here in the case as well, but ultimately, this is a helpful case on running plates and officers being able to reasonably act on the information they obtain from running a plate. 

You can find the full opinon here: State v. Anderson. 

Probable Cause in DUI Case: State v. Dutton

 The Utah Court of Appeals has given a helpful analysis of probable cause as it relates to DUI cases. 

Facts: 

Defendant drove to the bank and bank employees called the police as they were worried that she was intoxicated. Her driving was reported as "iffy," her speech was slow, and she seemed "out of it." A police officer that was personally aware of the defendant responded and found her vehicle. He went to make a stop for a broken taillight, but defendant pulled into her driveway. When officer approached, defendant handed him unrelated paperwork and was slow to produce her diver license. Officer noted defendant's speech was slurred and she had a "thick tongue." She stumbled when she exited the vehicle and appeared disoriented. While he did not smell the odor of alcohol, he did suspect she was impaired. Officer did the HGN test which showed 4 of 6 clues. Due to a back injury, the other two tests were not completed. 

Officer arrested defendant and a blood draw resulted in various controlled substances being present in defendant's blood. 

Issue: Defendant challenged both the probable cause for the arrest and also claimed ineffective assistance of counsel due to no jury unanimity instruction. While a jury unanimity instruction was given for the DUI elements, there were two theories presented in that the defendant was impaired while driving to the bank and also after she arrived home and was still in actual physical control of the vehicle. There was no unanimity instruction for the alternate theories. 

Holding: There was clearly probable cause for the arrest and an officer knowing defendant personally did not outweigh the evidence available. While the jury was not instructed on unanimity for the theory of DUI, the court said it is highly unlikely that any juror would have believed the defendant's story and there was evidence of her impairment at the bank to corroborate the finding of guilt. 

This is a helpful case for both unanimity in DUI cases and also the probable cause analysis. You can find the full opinion here: State v Dutton

State v. Millett - Blood Toxicology Decision

 There was a useful decision out of the court of appeals regarding toxicologist testimony and the foundation necessary for them to testify. 

In State v. Millett the defendant was arguing that not having the scientist present that did some initial preliminary testing present and also not having the person that calibrated the equipment used to test violated the defendant's right to cross examination. 

The toxicologist testified unequivocally that the preliminary testing would not have any impact on the confirmation tests, and therefore, would not impact the ultimate results. The Court of Appeals held that the lack of the two witnesses the defendant was demanding to cross examine would at best go to the weight of the evidence, not the admissibility. 

This is not a groundbreaking holding, but it is helpful if anyone encounters similar arguments we often get when defendants are challenging everything and the kitchen sink in DUI related cases. There is also some relevant case law for traffic stops and PC for arrest as well in the opinion. 

You can read the full opinion here: State v Millett

Saving Statute and Drugged Driving Recodification

 The Utah Supreme Court recently issued a ruling on an important issue for driving with a measurable controlled substance (DMCS) cases. To understand the court's decision, we have to understand how we got here. 

Prior to 2022, Utah had multiple areas of the code where a person could be charged when operating a motor vehicle under the influence of drugs and/or alcohol and causing serious bodily injury or death. The level of the offense was different based upon the substance, and could be somewhat confusing as to what level of offense to charge and which section of the code is appropriate. In the 2022 legislative session, a group of stakeholders set out to simply and consolidate all these offenses into clear and consistent code sections centrally located together. 

This effort was not controversial and was supported across the board by stakeholders, including prosecutors and defense attorneys. The intent was not to decriminalize any behavior. The goal was simply to put all the similar statutes in the same code sections and make penalties consistent across the board. 

This brings us to State v. Cooke. Cooke was charged with an offense in 2016 under the old code sections. Due to several continuances and delays, mostly due to the defense counsel requests and then covid, the case proceeded beyond the 2022 statutory change/consolidation. Cooke argued that his case must be dismissed because the crime he was charged with originally no longer existed. 

The state argued that Utah's "saving statute" applied and the prosecution could proceed under the old statute, even though it had been repealed. The Supreme Court wisely determined in the state's favor. This was an important decision as it holds up all cases filed prior to the 2022 change which was more akin to a recodification than a repeal of the statute. This case will be important if anyone tries to make a similar challenge to Cooke. 

You can view the entire opinion here: State v. Cooke.