Wednesday, August 10, 2011

DUI Law - Farting is Not a Defense to Breath Testing in Alaska

In Hallam v. City and Borough of Juneau, Not Reported in P.3d, 2011 WL 3241827 (Alaska App.), the defendant challenged the admission of the breath test, claiming a failure by the State to prove compliance with the state regulations. Hallam claimed he burped or regurgitated prior to submitting to the breath test and the police officer should have restarted the fifteen-minute observation period. He also argued that the police should have made an audio recording of the fifteen-minute observation period.
At the police station, before the administration of the breath test, Hallam used the bathroom and asked to call his attorney. To provide Hallam with some privacy during his conversation with his attorney, Officer James turned the audio recording off. She turned the recorder back on once Hallam was finished talking with his attorney. Shortly before the breath test, Hallam made a sound, and Officer James asked him, “Was that gas?” Hallam provided a breath sample, which showed his breath alcohol content was .201 percent. At trial, Hallam's attorney moved to suppress the breath test result. He argued that the sound Hallam made shortly before the breath test was a belch or regurgitation, and that the officer should have restarted the fifteen-minute observation period.
The trial court's ruling admitting the result was affirmed:
"The record supports Judge Levy's decision. The only evidence before Judge Levy at the time he ruled on whether the officer met the foundational requirements was the recording and Officer James's testimony that Hallam had passed gas during the observation period. Hallam has therefore not shown Judge Levy's ruling was clearly erroneous."
Additionally, the court commented on the requirement to audiotape the observation period as follows:
"Hallam argues Judge Levy erred in finding the prosecutor established the foundational requirements for admitting the breath test result because the police did not record the entire fifteen-minute observation period. Hallam relies on the Department of Public Safety manual as authority for his argument that the police are required to audio or video record the entire observation period. The Department of Public Safety manual does instruct officers to record the fifteen-minute observation period, but we do not view this provision of the manual as an administrative interpretation of the statutory foundation for the admissibility of breath test results. Our primary reason for reaching this conclusion is that recording the observation period appears to have no relationship to the accuracy of the test.

For the breath test result to be admissible, the police must conform with the foundational requirements mandated in AS 28.35.033(d) and the Alaska Administrative Code. The police may be required to meet additional standards, such as those in a manufacturer's manual, if the additional requirements are necessary to assure valid and reliable breath tests." (footnotes omitted)

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