State v. Turner

2012 UT App 189, 283 P.3d 527, 712 Utah Adv. Rep. 34, 2012 WL 2849299, 2012 Utah App. LEXIS 197
CourtCourt of Appeals of Utah
DecidedJuly 12, 2012
Docket20100714-CA
StatusPublished
Cited by11 cases

This text of 2012 UT App 189 (State v. Turner) 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
State v. Turner, 2012 UT App 189, 283 P.3d 527, 712 Utah Adv. Rep. 34, 2012 WL 2849299, 2012 Utah App. LEXIS 197 (Utah Ct. App. 2012).

Opinion

OPINION

McHUGH, Presiding Judge:

{1 Randy James Turner appeals from his conviction for driving under the influence of alcohol (DUI) in violation of Utah Code seetion 41-6a-502, a third degree felony. See Utah Code Ann. §§ 41-6a-502, -508(2) (2010). Turner argues that the breath test procedures adopted by the Commissioner of the Department of Public Safety (the Commissioner) pursuant to Utah Code section 41-6a-515(1) violate rule 702 of the Utah Rules of Evidence. See Utah Code Ann. § 41-Ga-515(1); Utah R. Evid. 702. 1 Alternatively, Turner asserts that section 41-6a-515 is an unconstitutional infringement on the Utah Supreme Court's power to enact rules of evidence. See Utah Const. art. VIII, § 4 ("The Supreme Court shall adopt rules of procedure and evidence to be used in the courts of the state and shall by rule manage the appellate process."). Turner also contends that the admission of the breath test results violated his due process rights both because the results are unreliable and because section 41-6a-515 unconstitutionally shifted the burden of proof from the State to Turner. We affirm.

BACKGROUND

12 In June 2007, a police officer stopped Turner for making several lane changes and a U-turn without signaling. Suspecting that Turner was intoxicated, the officer requested the assistance of another officer to conduct a DUI investigation. Turner admitted to drinking "about five beers." After administering several field sobriety tests, the officers determined that Turner exhibited signs of impairment and arrested him. One of the officers at the scene obtained Turner's consent to a breath test. After inspecting Turner's mouth and waiting seventeen minutes, the officer used a portable Intoxilyzer (Intox-ilyzer) to test Turner's breath alcohol concentration. The test revealed a breath aleohol concentration of 0.170 grams, which is over *529 twice the legal limit of 0.08 grams. 2 See Utah Code Ann. § 41-6a-502(1). The officer did not test Turner more than onee and did not confirm the Intoxilyzer results with a contemporaneous blood test or other alternative testing method.

T8 Before trial, Turner filed a motion to suppress the Intoxilyzer results. Turner argued that Utah Code section 41-6a-515 violates the Utah Constitution's delegation of power to the Utah Supreme Court to establish court rules by supplanting the requirements of rule 702 of the Utah Rules of Evidence. See Utah Const. art. VIII, § 4. Turner also claimed that the State's "periodic accuracy verification process" for Intoxilyz-ers, as well as its suspect-specific testing methods, were inadequate to ensure reliable test results, thereby violating Turner's due process rights under the Utah and United States Constitutions. The State responded by challenging each of Turner's positions.

£4 At a hearing on Turner's motion to suppress, two experts testified about the procedures for maintaining and calibrating In-toxilyzer machines and for administering In-toxilyzer tests. The State called a trooper (Trooper) for the Utah Highway Patrol (highway patrol), who was a member of the Intoxilyzer and alcohol crew. The defense presented an emeritus professor of pharmacy (Professor) from a state university.

15 Trooper testified that as part of his primary duties, he maintained Intoxilyzers in several counties. He explained that this included "check[ing] each [IJntoxilyzer every 40 days, verifying] that [the Intoxilyzers were] functioning properly, provid[ing] the supplies, responding] to any issues that any officers might have, troubleshoot[ing], maintain[ing], [and] basically just check[ing tol make sure that [the Intoxilyzers were] working properly." To gain the skills necessary to perform his job, Trooper attended a ten-day course taught by the manufacturer of the Intoxilyzer and also received additional training from his supervisors. After describing his duties and training, Trooper testified regarding the internal diagnostic tests the In-toxilyzer automatically conducts before each individual breath test to verify that the machine is operating properly. He then identified the various tests he performed every forty days, as required by rule RT714-500-6 of the Utah Administrative Code. Specifically, he described a series of checks he conducts to confirm that the Intoxilyzer will disallow an improper test, including pressing the start button or breathing into the machine at the wrong time, holding a source of alcohol next to the breath tube, and placing alcohol on his tongue immediately before blowing into the machine. Trooper explained that Intoxilyz-ers are designed to measure alcohol in the deep lung air and that these checks ensure that the Intoxilyzer is properly disallowing tests where mouth alcohol is detected.

16 Trooper also testified that the State uses a "wet bath simulator," also known as an external calibrator, every forty days to "check the [IIntoxilyzer's known internal standards" by simulating a breath test. He explained that the wet bath simulator uses a known ratio of water to alcohol to test the machine. -If the Intoxilyzer is working aceu-rately, it should register a reading of 0.100 whenever that solution is used. However, Trooper indicated that the administrative rule governing the calibration of Intoxilyzers allows a margin of error of "plus or minus 5 percent or .005, whichever is greater." He also reported that the testing solution used as the standard to measure the accuracy of the Intoxilyzer results is commercially produced by the manufacturer of the wet bath simulator and then independently tested by an unaffiliated laboratory to ensure that the water-to-aleohol ratio in the solution is as represented.

T7 During direct examination, the State asked Trooper whether other states require two or more breath tests per DUI suspect, and Trooper replied that some states do, but that other states, like Utah, require only a single breath test. Trooper also noted that although some states require a calibration verification, such as a wet bath simulator, whenever a DUI suspect is tested, other states join Utah in not requiring pretest calibration in the field. Turner did not raise *530 any objections to Trooper's qualifications or his testimony.

T8 On eross-examination, the defense asked Trooper why the highway patrol performed only one breath test on DUI suspects instead of performing two or more tests to verify accuracy by means of comparison. Trooper explained that multiple tests are unnecessary because "the sample is continuously analyzed during the test" and that the Intoxilyzer is "sampling or testing that same [breath] sample several times a second as it's processing through." In response to the defense's further inquiry, Trooper explained that it would "be extremely difficult to contaminate a person's breath" and that even belching while blowing on the Intoxilyzer would not contaminate the results.

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Cite This Page — Counsel Stack

Bluebook (online)
2012 UT App 189, 283 P.3d 527, 712 Utah Adv. Rep. 34, 2012 WL 2849299, 2012 Utah App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-turner-utahctapp-2012.