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Palmer v. Boyden11/3/2005
MEMORANDUM DECISION
Not For Official Publication
Original Proceeding in this Court
Before Judges Billings, Bench, and Greenwood.
Petitioner Jeffrey Palmer filed this petition for extraordinary relief challenging the decision of the district court denying a motion in limine to exclude the results of an intoxilyzer test and the resulting conviction.
The underlying case originated in the Murray City Justice Court. After pleading guilty in the justice court to driving under the influence of alcohol, Palmer appealed to obtain a trial de novo in district court. The district court denied a motion in limine seeking to exclude the results of the intoxilyzer test, and Palmer was again convicted of the DUI offense after a trial de novo.
Palmer correctly states that no direct appeal to this court is available because the district court did not rule on the constitutionality of a statute or ordinance. See Utah Code Ann. § 78-5-120(7)(2002) ("The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance."). Accordingly, Palmer asserts that he has no plain, speedy, or adequate remedy to obtain review of the decision on the motion in limine during de novo proceedings. Under the circumstances, "pursuit of an extraordinary writ is procedurally correct." Dean v. Henriod, 1999 UT App 500, , 975 P.2d 946.
Because the petition challenges a judicial decision, "our review shall not extend further than to determine whether [the court] has regularly pursued authority." State v. Stirba, 972 P.2d 918, 920 (Utah Ct. App. 1998). "We may grant the extraordinary relief of a writ in the nature of mandamus, compelling a lower court's compliance, when the lower court has '(A) . . . exceeded its jurisdiction or abused its discretion (B) . . . failed to perform an act required by law as a duty of office, trust or station.'" Id. at 921 (quoting Utah R. Civ. P. 65B(d)(2)). While an extraordinary writ under rule 65B(d)(2)(B) is available to direct the exercise of discretionary action, it is not available to "direct the exercise of judgment or discretion in a particular way." Id. (quotations and citations omitted). On the other hand, while rule 65B(d)(2)(A) does allow this court "to direct the particular exercise of a lower court's judgment to correct the lower court's abuse of discretion," the requisite abuse of discretion to support relief under rule 65B(d)(2)(A) writs "must be much more blatant than the garden variety 'abuse of direction' featured in routine appellate review," requiring a showing of "gross and flagrant" abuse of discretion. Id. at 922.
Palmer claims both that the district court abused its discretion in denying his motion to suppress the breath test results and that the court failed to perform a legal duty to grant the motion. He argues that the foundation requirements for admission were not satisfied because the arresting officer was not certified to administer the test, Palmer was left unattended in the patrol car, and he was "not personally observed" for a period of one to two minutes during the required observation period. Palmer argues that the Baker rule, as reiterated in State v. Vialpando, 2004 UT App 95, , 89 P.3d 209, requires a fifteen minute uninterrupted and unimpeded observation period that cannot be cured by an extended but interrupted period.
The foundation requirements for admission of breath test results are: (1) the machine is in proper working condition at the time of the test; (2) the test was administered correctly by a qualified operator; and (3) "a police officer observed the defendant during the fifte
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