Bountiful City v. Maestas

788 P.2d 1062, 129 Utah Adv. Rep. 56, 1990 Utah App. LEXIS 37, 1990 WL 26017
CourtCourt of Appeals of Utah
DecidedMarch 8, 1990
DocketNo. 890054-CA
StatusPublished
Cited by2 cases

This text of 788 P.2d 1062 (Bountiful City v. Maestas) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bountiful City v. Maestas, 788 P.2d 1062, 129 Utah Adv. Rep. 56, 1990 Utah App. LEXIS 37, 1990 WL 26017 (Utah Ct. App. 1990).

Opinion

DAVIDSON, Judge:

Defendant appeals his conviction of driving under the influence of alcohol in violation of Bountiful Traffic Code § 8-4-501. He raises four issues on appeal: (1) the arresting officer lacked reasonable suspicion to make the initial stop; (2) the intoxi-lyzer machine was improperly tested and rendered inaccurate results; (3) the affidavits required to demonstrate compliance with state standards for chemical breath analysis were inaccurate; and (4) the trial court failed to make the required findings before admitting the intoxilyzer affidavits. We reverse and remand.

On the afternoon of April 28, 1988, a Bountiful City patrolman was issuing a traffic citation on Main Street in Bountiful. During that stop, two separate citizens informed him that an apparent intoxicated person was observed at the Maverick Store asking directions to the Utah State Liquor Store. The citizens provided the officer with a description of the person’s vehicle. After completing the Main Street traffic stop, the officer drove to the liquor store where he spotted a vehicle matching the description given by the citizens.

He pulled alongside the vehicle and “made contact with the driver.” The defendant was sitting in the driver’s seat with the motor running. After the initial contact, the driver identified himself by giving the officer his Utah driver’s license. Soon after the initial contact and in the course of the subsequent conversation, the officer “detected a strong odor of alcohol coming from [defendant’s] breath.” He asked defendant if he would submit to field sobriety tests. Defendant agreed. The officer performed five separate tests and concluded that defendant had some difficulty repeating verbal commands and showed impaired coordination. After performing the tests, the officer arrested defendant. He was brought to the Bountiful Police Station where the arresting officer administered a breath intoxilyzer test. The test result indicated that defendant’s blood alcohol content (BAC) was .129%.

REASONABLE SUSPICION

Defendant first argues that the initial encounter was an illegal stop and seizure accomplished without reasonable suspicion and that the trial court erred by failing to suppress the evidence. He equates the initial encounter to a traffic stop. See State v. Sierra, 754 P.2d 972 (Utah Ct.App.1988). Defendant further argues that the officer was required to independently corroborate the private citizens’ tips before stopping and detaining defendant. These arguments are without merit.

The Utah Supreme Court recognizes three levels of police encounters which are constitutionally permissible:

(1) an officer may approach a citizen at anytime [sic] and pose questions so long as the citizen is not detained against his will; (2) an officer may seize a person if the officer has an “articulable suspicion” that the person has committed or is about to commit a crime; however, the “detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop;” (3) an officer may arrest a suspect if the officer has probable cause to believe an offense has been committed or is being committed.

State v. Deitman, 739 P.2d 616, 617-18 (Utah 1987) (quoting United States v. Merritt, 736 F.2d 223, 230 (5th Cir.1984), cert. [1064]*1064denied, 476 U.S. 1142, 106 S.Ct. 2250, 90 L.Ed.2d 696).

In this case, the initial encounter between the police officer and defendant falls into the first category. See Layton City v. Bennett, 741 P.2d 965, 967 (Utah Ct.App.1987). The record shows that the police officer made the initial contact while defendant was sitting behind the wheel of a pick-up truck in the liquor store parking lot. The driver identified himself with a Utah driver’s license. There is no evidence that the driver raised any objection to the officer’s inquiry nor does it appear that defendant was detained against his will. See Deitman, 739 P.2d at 618. We have previously ruled that an initial encounter of this type is “not a seizure subject to fourth amendment protection.” Bennett, 741 P.2d at 967.

It was only after the initial encounter, when the officer smelled alcohol on defendant’s breath, that reasonable suspicion arose. Id. See also Utah Code Ann. § 77-7-15 (1982).1 At that point the officer was justified in detaining defendant for a reasonable period of time to administer the field sobriety tests.

VALIDITY OF AFFIDAVITS

A. Calibration and Test Results

Defendant next argues that the calibration and testing of the intoxilyzer were deficient and violated state testing standards.2 The defendant claims that the officer’s affidavit describing the test results was inaccurate. He alleges that the police officer testing the machine checked a box indicating that the machine was equipped with a fixed absorption calibrator when the machine was not equipped with such a device.3 The alleged inaccurate section of the affidavit reads as follows:

YES NO
(X) Fixed absorption calibrator test (if equipped)
(Reads within +/— .01 of calibration setting) (X) ( )

We find the affidavit to be confusing in that a yes answer could mean that the machine was equipped and tested or, alternatively, the machine was not equipped but that no mechanical malfunction existed rendering the machine inoperative. Similarly, a no check could indicate either the machine was not equipped with a fixed absorption calibrator or that the calibration setting did not comply with state testing standards.

The purpose underlying the state testing requirements is to guarantee that breath testing equipment functions properly and renders accurate results. Murray City v. Hall, 663 P.2d 1314, 1320 (Utah 1983). Here, the affidavit indicates that the intoxi-lyzer functioned properly. In the absence of evidence disclosing a defect, a yes check does not render the test results inaccurate.

B. Personal Knowledge

Defendant next argues that the custodian affidavit and the intoxilyzer test record affidavit are inadmissible because the affiants testing the machine did not attest from their own personal knowledge. See Hall, 663 P.2d at 1320. Hall stated that affidavits proving the accuracy of breathalyzer equipment must “show on their face that the affiants ... attest from [1065]*1065their own personal knowledge.” Id. We find that both affidavits comply with the personal knowledge requirements.

The breath testing supervisor signed his name to the custodian affidavit, listed the intoxilyzer serial number, and filled in the date upon which the test was completed.

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Bluebook (online)
788 P.2d 1062, 129 Utah Adv. Rep. 56, 1990 Utah App. LEXIS 37, 1990 WL 26017, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bountiful-city-v-maestas-utahctapp-1990.