In November of 2013 a bad DUI case came out for the DUI Defense community in Washington State. State v. Mashek, 117 Wash.App. 749. It had to do with a breath test suppression and what is requirement of a law enforcement officer when it comes to actually observing the defendant prior to the administration of the breath test. I have been meaning to review this case since I read it in December. My apologies for the delay but that’s what a newborn will do. Here is my analysis…..
A little background on this case. The defendant was charged with a felony DUI because she has previously been convicted of vehicular assault. At a motion hearing the defendant moved to suppress the breath test because the police officer did not continuously observer her prior to the administration of the breath test. Picture above is courtesy of my good friend and fellow DUI lawyer William Maze. Check him out at http://www.michigan-drunk-driving.com/
Specifically there was a three minute span where the law enforcement officer’s body was positioned away from the defendant while he was setting up the breath test machine. The defendant argued this was not a proper 15 minute observation period because the officer did not continuously observe her. FYI in order for a breath test to be admissible an operator needs to observe the subject for at least 15 minutes prior to the administration of the breath test to make sure they do not vomit, eat, drink, or smoke.
The trial court granted the defense motion to suppress the breath test finding the officer did not observe the defendant for a three minute span. The State appealed and the Court of Appeals for Division 2 overruled the trial court. Finding the observation period does not require a fixed or visual observation rather the observation period is satisfied if an officer uses all their senses not just sight to determine the subject does not eat, drink, smoke, or put any foreign substances in their mouth at least 15 minutes prior to the test.
Obviously this is a bad case for the Defense. One of the basic arguments DUI Attorneys make to suppress the breath test is the observation period was not satisfied. Especially when the officer is not paying attention, turns their back to the defendant, etc. However I still believe this case leaves open other challenges based on an improper observation.
For example let’s say the defendant puts their hand over their mouth. This was one of the issues raised in the Mashek case, however the trial court nor the Court of Appeals ruled on it. The ruling was specifically related to the 3 minute span when the officer had turned away from the defendant. If a Judge can be convinced of the difference, or the defendant had some sort of foreign substance that was introduced into the mouth region. That might be a way to distinguish from the case and get the breath test suppressed.
About the author: Matthew Leyba is a practicing DUI Lawyer in Seattle, WA.