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.