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.