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Palmer v. Boyden11/3/2005
en minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time." Id. In Vialpando, we concluded:
The purpose of the observation period is to ensure that a defendant does not introduce anything into his mouth that might taint the test results. While this requirement serves to ensure that the defendant places no food, drink, or smoke into his mouth during the observation period, its most important function is to ensure that any alcohol in a suspect's mouth is absorbed into the system before the test is administered. We do not believe that this requires the undivided attention of the observing officer. Instead, "the level of surveillance must be such as could reasonably be expected to" ensure that no alcohol has been introduced into the suspect's mouth, "from the outside or by belching or regurgitation," during the entire observation period. The purpose of the observation period is satisfied if (1) the suspect was in the officer's presence for the entire period; (2) it is clear that the suspect had no opportunity to ingest or regurgitate anything during the minimum observation period; and (3) nothing impeded the officer's powers of observation during the observation period.
Id. at (citation omitted).
The district court in this case found that Sergeant Latham had Palmer in his presence throughout Palmer's transport to the testing station and up until the time of the test, satisfying the fifteen minute observation period. Even assuming that Palmer was inside the patrol vehicle alone for one or two minutes before Latham entered the vehicle, Palmer was handcuffed at that time, he answered in the negative when asked if he had vomited prior to administration of the test, and he was within the observation of one or both officers during the entire fifteen minute period prior to the test. Palmer testified that he had burped, but he did not recall whether liquid came into his mouth. The district court found Palmer's testimony to be self-serving and not credible. In contrast, Latham testified that he kept Palmer under his observation from the time that his mouth was checked until the time the test was administered. Both officers testified that they understood the observation requirement and testified that they complied with it. Palmer's contention that the officer who observed Palmer must also have been certified to operate the intoxilyzer machine is without support, particularly since the purpose of the observation period is simply to ensure that all alcohol is absorbed prior to the test's administration, which has no bearing on the actual operation of the intoxilyzer.
The district court did not abuse its discretion in denying the motion to suppress, and particularly, the court's actions did not demonstrate a gross or flagrant abuse of discretion to justify extraordinary relief. In addition, there is no support for the assertion that the district court failed to perform a duty in denying the motion to suppress.
We deny the petition seeking extraordinary relief.
Judith M. Billings, Presiding Judge
Russell W. Bench, Associate Presiding Judge
Pamela T. Greenwood, Judge
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