State v. Relyea

• Decision Date: 24 February 2012
• Docket Number: No. 20100077–CA.,20100077–CA.
• Citation: 2012 UT App 55,288 P.3d 278,702 Utah Adv. Rep. 47
• Parties: STATE of Utah, Plaintiff and Appellant, v. Randall Matthew RELYEA, Defendant and Appellee.
• Court: Utah Court of Appeals

288 P.3d 278

702 Utah Adv. Rep. 47

2012 UT App 55

STATE of Utah, Plaintiff and Appellant,

v.Randall Matthew RELYEA, Defendant and Appellee.

No. 20100077–CA.

Court of Appeals of Utah.

Feb. 24, 2012.

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellant.

Douglas J. Thompson, Provo, for Appellee.

Before Judges McHUGH, DAVIS, and ROTH.

OPINION

McHUGH, Presiding Judge:

¶ 1 The State of Utah appeals from an interlocutory order granting the defense's motion to suppress breath alcohol concentration results from an Intoxilyzer 8000 machine (Intoxilyzer). The State argues that the trial court erred in ruling that a foundational requirement for the admission of Intoxilyzer results, a fifteen-minute observation period, was not satisfied. In the alternative, the State contends that the trial court erred in excluding the test results because the fifteen-minute observation period required by State v. Vialpando, 2004 UT App 95, 89 P.3d 209, should no longer be required due to changes in equipment and technology. We reverse and remand.

BACKGROUND

¶ 2 On November 18, 2008, the Springville Police Department received a tip that an intoxicated driver was in a white car without license plates and proceeding westbound on River Bottom Road. Two patrol officers spotted a vehicle matching the description and attempted to pull it over. After a short pursuit, the vehicle pulled into the parking lot of a liquor store and stopped. As officers approached the vehicle, it started to roll back toward the officers' car. While one officer prevented the vehicle from rolling any further, the other officer instructed the driver to engage his emergency brake. After the car was stopped, the officers determined that the driver was Randall Matthew Relyea.

¶ 3 While talking to Relyea, the officers noticed that his eyes were bloodshot and that his speech was slow and slurred, and at least one officer could smell alcohol on Relyea's breath. However, Relyea denied that he had been drinking. After performing three field sobriety tests, the officers determined that Relyea was too impaired to drive. Another officer (the Arresting Officer), who arrived at the scene during the field sobriety tests, then cuffed Relyea's hands behind his back and placed him under arrest.

¶ 4 Following the requirements of State v. Baker, 56 Wash.2d 846, 355 P.2d 806 (1960), applied by the Utah Supreme Court in Salt Lake City v. Womack, 747 P.2d 1039 (Utah 1987), the Arresting Officer inspected Relyea's mouth to insure that it was free from “foreign objects.” The officer made Relyea spit out chewing tobacco and then rechecked his mouth, determining that it was empty. The Arresting Officer informed dispatch that the mouth inspection was performed at 3:07 p.m. Afterwards, the Arresting Officer transported Relyea to the police station in the backseat of a patrol car. Although he could see Relyea through his rearview mirror, the Arresting Officer admitted that he would not have noticed if Relyea “burped or regurgitated” during the drive. At 3:12 p.m., the Arresting Officer and Relyea arrived at the police station. From that point forward, the Arresting Officer was able to observe Relyea, who was still handcuffed. The Arresting Officer did not recheck Relyea's mouth for foreign objects after arriving at the police station. At 3:28 p.m., the Arresting Officer administered the Intoxilyzer test. The results indicated that Relyea had a breath alcohol content of 0.237.

¶ 5 The State charged Relyea with driving under the influence of alcohol or drugs pursuant to Utah Code section 41–6a–502. SeeUtah Code Ann. § 41–6a–502 (2010).¹ Subsequently, Relyea filed a Motion to Suppress Intoxilyzer Results, arguing that he was not adequately observed for fifteen minutes prior to the administration of the test. Specifically, Relyea asserted that the Arresting Officer would not have noticed if Relyea burped or regurgitated in the backseat of the patrol car. In response, the State argued that the Arresting Officer's observation of Relyea during the twenty-one minute period between the arrest and the test was with sufficient “clarity and accuracy” to satisfy the Baker standard.² In reply, Relyea requested an evidentiary hearing to determine whether Relyea “burped or regurgitated between the time [the Arresting Officer] checked [his] mouth and transported him to the police station to perform the [I]ntoxilyzer test.”

¶ 6 The court granted the request and held an evidentiary hearing on June 15, 2009. At that hearing, Relyea testified that he suffered from gastroesophageal reflux disease, commonly referred to as GERD, that caused him to “belch or regurgitate up through the back of [his] throat when ... sleeping ... [and] during the day.” Relyea also explained that his symptoms were aggravated by alcohol use but that he could “mask” and “control” his symptoms so that there might not be sounds or other signs that he was experiencing the symptoms. Relyea stated that while seated in the backseat of the patrol car, he “was having severe regurgitation and belching” but quickly swallowed down any residue. Relyea did not notify the Arresting Officer of his condition. Further, Relyea could not recall when exactly he experienced these symptoms or whether he was burping “while breathing on the [Intoxilyzer].” Relyea did testify, however, that when drinking alcohol his condition is “almost constant.”

¶ 7 On June 18, 2009, the trial court entered a Ruling and Order on Defendant's Motion to Suppress Intoxilyzer Results, granting Relyea's motion. The court reasoned that under State v. Vialpando, 2004 UT App 95, 89 P.3d 209 (applying the requirements of Baker, 355 P.2d at 809–10), the ride to the police station with Relyea in the backseat “impeded the [Arresting Officer's] powers of observation[ ]” because the Arresting Officer would not have noticed if Relyea was burping or regurgitating. See id. ¶ 18 (holding that the purpose of the observation period is met if three criteria are satisfied, including that the “officer's powers of observation” were not impeded). Accordingly, the court determined that the State had not established the foundation required for the admission of the Intoxilyzer results. Even without the Intoxilyzer results, however, the court determined that there was “sufficient evidence to support probable cause to go to trial.”

¶ 8 In response to the court's ruling, on July 16, 2009, the State filed a Notice of Intent to Appeal and Motion for Leave to Supplement the Record. In this Motion, the State requested that the court allow the State to supplement the record with expert testimony to demonstrate that, unlike the Breathalyzer machine (Breathalyzer) that was involved in Baker, the Intoxilyzer used to test Relyea did not require a fifteen-minute observation period to ensure an accurate result. The State conceded, however, that the court was bound to follow the holding of Vialpando because that case applied the analysis of Baker to Intoxilyzers.³ The trial court scheduled an evidentiary hearing for August 10, 2009. In response, Relyea filed a motion to strike the evidentiary hearing, requesting instead that the trial court hold oral arguments on the issue of whether the State should be allowed to supplement the record. While the trial court did not strike the evidentiary hearing, it issued an order stating, “The Evidentiary Hearing scheduled for August 10, 2009, will proceed after Oral Arguments on [the] State's Motion to Supplement [the] Record if the defense motion is denied. If the defense motion is granted, the evidentiary hearing will be stricken.” Thus, the trial court left open the possibility that the record would be reopened and additional evidence admitted.

¶ 9 At the August 10, 2009 hearing, the State modified its earlier position and expressly requested that the trial court reconsider its June 18, 2009 ruling, in addition to permitting the State to supplement the record. The court initially denied the State's motion to supplement the record because it was unaware of any facts or law in its original ruling that it had misconstrued. However, the trial court allowed the State to “do an offer of proof by putting on the evidence so [the State could] preserve [the evidence].”

¶ 10 After allowing the evidence as an offer of proof, the trial court explained its initial ruling on the Baker issue by stating, “[ Relyea ] testified he regurgitated, and I know we put that in our findings of fact, but that doesn't really matter. What matters is the officer ... said [he] wasn't observing [ Relyea ] during this [ twenty-one-] minute [ period; ] ... he admitted that.” (Emphasis added.) The State then proffered the following evidence through counsel:

[The Arresting Officer] took Baker at [3:07 p.m. when the Arresting Officer] was six blocks away from the police station. And according to the log from dispatch, he arrived there at the police station at [3:12 p.m.] That's five minutes. From [3:12 p.m.] to [3:28 p.m.] ... that's [sixteen] minutes.... It seems to me that the Court's ruling was having to do with when he was in the vehicle, not under observation. We still have [ sixteen ] minutes ... from when he left the vehicle.[ ⁴]

(Emphasis added.) Upon hearing the proffer, the trial court stated, “Now, that would be a ground for reconsideration if I misconstrued that fact.” In response to Relyea's argument that the State had not presented this evidence at the prior suppression hearing, the trial court ruled that the Arresting Officer could testify as to the facts in the State's proffer as an additional “offer of proof.” The court indicated, however, that it would not “change the ruling unless [the State could] show that [the court] misconstrued the record somewhere, then [the court would] be happy to change it.”

¶ 11 The State called the Arresting Officer, who testified that he placed Relyea in the back of the patrol car at 3:07 p.m. and that they arrived at the police station at 3:12...