The breath testing administrative rules in Michigan do require that the police observe you continuously for at least 15 minutes before you provide your first breath sample. However, based on the case law discussed below, in this context the words “observe” and “continuously” are not as simple as they may seem. Also, even if the officer did not literally observe you, then the remedy may not be suppression of the test result. Instead, courts often say that the breath test results go to “weight” rather than “admissibility.”
There simply is no bright-line rule of automatic suppression of evidence where an administrative rule has been violated.[i] Michigan courts have held that where the administrative rules regarding the administration of Breathalyzer tests have not been complied with, the accuracy of those results is sufficiently questionable to preclude the test results from being admitted into evidence.[ii]
A starting point for the discussion of the 15-minute observation rule is the applicable administrative, rule, which was amended in 2007. At this point, it was significantly attenuated. Rule 5: Techniques and Procedures currently reads as follows:
(e) A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by 1 or more appropriate class operators pursuant to R 325.2658(4) before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his or her mouth, except for the mouthpiece associated with the performance of the test. The observation may be conducted by more than 1 operator working in concert. The operator need not stare continuously at the subject, but must be close enough to be aware of the person’s actions and conditions. The operator may complete paperwork, enter data into the breath test instrument, or conduct other reasonable tasks during the observation period provided the subject is within the operator’s field of vision. Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.
In the very old case of People v. McGough, 164 Mich. App. 674, 417 N.W.2d 571 (1987), the court indicated that even though breath tests are generally accepted as reliable by the scientific community, prosecutors still must introduce foundational evidence before the breath test results can be admitted. This includes that the proper rules be followed. Although expert testimony is not necessary to demonstrate that Breathalyzer tests are generally accepted as reliable by the scientific community, this in no way obviates the state’s responsibility to introduce certain foundational evidence.[iii] This includes evidence that the administrative rules were followed.[iv]
In this case the police officer testified that the defendant may have had a drink of water. Thus, the circuit court suppressed the results. The appeals court found that “notwithstanding the arresting officer’s testimony that defendant may have had a drink of water, the Breathalyzer operator testified that during the fifteen minutes he observed defendant, defendant did not eat, drink or smoke anything. His failure to mention that defendant did not regurgitate does not render the test results inadmissible. To hold otherwise would contravene common sense and hinge admissibility on recitation of certain words. We decline to require the super technical. By negative implication, nothing was in defendant’s mouth for that period.
Another older case that pre-dates the new administrative rules by also 20 years is People v. Boughner, 209 Mich. App. 397 531 N.W.2d 746 (1995). In this case the court started out stating that the purpose of the administrative rules with respect to administering Breathalyzer tests is to ensure the accuracy of those tests.[v] Also, that a failure to meet the foundational requirements, including the 15-minute waiting period, will preclude the use of the test results. When the rules regarding Breathalyzer tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence.
The court then described the facts relative to rule 5, and indicate that the defendant was videotaped for approximately thirty-five minutes before the test was administered. However, the operator of the test arrived at the police station where defendant was being held no more than eight minutes before the test was administered. The videotape also demonstrated that the operator did not continuously observe defendant for those eight minutes. Also, during some of this 35 minutes when defendant was being recorded, and especially for approximately five minutes before the first test, the view of defendant was obstructed for approximately three to five seconds when an officer stood at a desk next to defendant. The court indicated that they were unable to determine what defendant was doing during that time. Finally, during this thirty-five-time period before the test was administered, defendant’s hand was either on his face, or in or on his mouth. Although it appears that defendant put his fingers in his mouth, it is impossible to tell from the videotape whether defendant placed something else in his mouth at these times. As a result of these questions, the court concluded that the administrative rule in question was not complied with. Accordingly, the defendant’s UBAL conviction was vacated.
A few years later, in the case of People v. Wujkowski, 230 Mich. App. 181 583 N.W.2d 257 (1998) the court too another look at this issue. In this case the breath test operator testified that he brought defendant to the booking room at the county jail. After reading defendant his chemical test rights, he noted the time on the Breathalyzer machine as 5:05 a.m. From 5:05 a.m. until 5:23 a.m. (when the first breath sample was taken), the officer observed the defendant except for approximately six seconds when the officer walked away from defendant to check the machine again to determine if fifteen minutes had elapsed. The court of appeals found that the momentary time that the officer did not observe defendant was so minimal that the test results cannot be assumed to be inaccurate, and there was no allegation that defendant placed anything in his mouth or regurgitated.
In an unpublished case of the same year, People v. Bohm, 1998 WL 1992892, the court indicated that they by using the phrase “continuously observe” in Boughner, they did not intend to require the operator of the Breathalyzer machine to stare fixedly at the defendant for fifteen minutes, specifically indicating that they declined to require such super technical compliance. Hence, where the operator testified that he was near defendant and could observe defendant through his peripheral vision while he was completing an alcohol influence report, and that defendant did not smoke, place anything in his mouth, or regurgitate, the test was admissible.
One year later in the unpublished case of People v. Gasper, 1999 WL 33445199, the court also ruled that a violation of the 15-minute observation rule did not require suppression. In this case the court first recited the four foundational requirements for admission of a breath: (1) the operator administering the test is qualified; (2) the proper method or procedure was followed in administering the test; (3) the test was performed within a reasonable time after the arrest; and (4) the testing devise was reliable.[vi] In this case the operator observed defendant from 11:27 p .m. until 12:09 a.m. but looked away to type in some information on the evidence ticket and to sign her name on the videotape log. She testified that defendant did not put anything in his mouth, and did not vomit, have a cigarette, or have anything to drink during the observation period. The court indicated that there was no allegation in this case that defendant placed anything in his mouth or regurgitated. Therefore, the court found that a small break in defendant’s observation period was so minimal that the test results cannot be assumed to be inaccurate.
In another unpublished case, People v. Markos, 2005 WL 711754. In this case the defendant submitted to two Breathalyzer tests. The officer observed defendant for fifteen minutes; however, approximately one minute after the observation period began, defendant was given permission to wash her face. While at the sink, defendant apparently either took a drink of water or rinsed her mouth. When asked if she had drunk any water, defendant said “no.” Thirteen minutes and twenty-two seconds elapsed between the time defendant put water in her mouth until the first test was administered, and fourteen minutes and thirty-two seconds elapsed before the second test. The results of both tests were 0.17 percent. Defendant presented an expert witness who testified that the water in defendant’s mouth might have affected the Breathalyzer test results. The prosecution’s expert witness, however, testified that both test results were accurate and unaffected by the water. The court ruled that although 1999 AC, R 325.2655(1)(e) was technically violated, the prosecution’s expert witness testified that the tests were not affected. We therefore conclude that admission of the Breathalyzer tests was not error.
In another 2005 unpublished case, this one entitled People v. Schwartz, 2005 WL 857136, the court first disabused the prosecutor’s contention that the Michigan Supreme Court had abolished any requirement that the prosecution establish the reliability of the test before admitting chemical test results.[vii] Since Wager, this Court has held that, to be admissible, chemical test results must be both relevant and reliable.[viii] In this case the record indicated that defendant was in a holding cell before the test, with his hands cuffed behind his back. The observing officer testified that defendant was under observation for the required fifteen minutes. At most, the officer turned his head occasionally during the fifteen-minute period and would not always have been able to hear if defendant regurgitated. However, the officer’s ability to observe defendant was not materially impaired at any time during the observation period. There was no evidence, or even allegation, that defendant regurgitated, put anything in his mouth, or was permitted to smoke. Accordingly, the appeals court found that the trial court did not clearly err in finding that the officer would have been able to see defendant from where he was standing, and that the required fifteen-minute observation period took place. Defendant has failed to show that the breath test results were inaccurate.
In the 2007 also unpublished case of People v. May, 2006 WL 740257, the breath test administrator left the room for about a minute during the observation period but another officer remained in the room during this time. There were also some issues with the clock on breath test machine and the video footage not matching. The court held that although the defendant “found it significant” that officer left the room while he washed his hands and relied on another officer to monitor the defendant, according to the video footage, that brief absence-approximately one minute-occurred before the 15-minute observation period commenced. And even if it could be said that the observation clock was running at that time, Wujkowski supports a conclusion that the operator’s brief absence is excusable if there is another officer present to monitor the defendant. Again, the purpose of the administrative rule is to ensure the accuracy of the test, and there is no indication or allegation that defendant put anything in his mouth or regurgitated at any point.
Also in 2007, this case entitled People v. Kneisler, 2007 WL 57253, the court ruled against suppression of evidence for a 15-minute rule violation. In this case, both the testimony of the officer administering the test, and the videotape indicated that there was a technical violation of the observation rule. Although the breath test operator claimed that he observed defendant from 3:25 a.m. until the breathalyzer test was administered at 3:51 a.m., he noted that he may have walked away from defendant or turned his back to her when he walked into the office. The officer also noted that he may have lost sight of defendant “for a split second” while calibrating the breathalyzer machine. Moreover, when asked to evaluate the whole observation period, the officer admitted that was looking at defendant only 96 percent of the time. Finally, the police station videotape shows a different officer taking defendant’s fingerprints. Thus, there was a technical violation of the observation rule. Notwithstanding this technical violation, the test results should not be suppressed.
In one final unpublished 2007 case, the Michigan again held that suppression was not warranted for a 15-minute rule violation. This case is entitled, People v. Omecinskyj, 2007 WL 4179350. In this case a portion of the observation was performed with the trooper was driving his patrol car. The court found that the record demonstrated that defendant did not regurgitate or smoke, and that because he was handcuffed and seat belted in the back of the patrol car, he could not have placed anything in his mouth. Further, defendant confirmed that he had no recollection of placing anything in his mouth during the 15 minutes prior to the test. As such, any technical violation of the administrative rule was harmless, and there is no basis for invalidating the test results.
Finally, in the 2009 case of People v. Blow, 2009 WL 4984300, the defendant’s first breath test was a 0.17 BAC result and the second test yielded a 0.18 BAC result. The trial court viewed the DVD made of a defendant in the booking room during the observation period and the Datamaster tests. The parties agreed that video showed that defendant was sitting in the booking room by 2:18:24 a.m. He remained sitting there, while handcuffed behind his back, for the next 13 minutes and 29 seconds. During the same time, the breath test administrator stood in the booking room, often with his back to defendant as he worked on some equipment. He also exited and reentered the booking room on several occasions. To complete certain booking tasks, the officer periodically turned away from defendant. He also completed some paperwork and prepared the Datamaster machine and, in the process, directed defendant to move across the booking room to sit adjacent to him and the machine. The court found that These facts did not demonstrate a violation of R.325.2655(1)(e). Specifically, the court indicated that the defendant was in the breath test administrator’s presence for a span of approximately 28 minutes. Consistent with the plain language of the rule, when the officer performed other tasks inside the booking room, defendant was always within his field of vision and he glanced at defendant on several occasions during that time span. Also, while the officer completely left the booking room several times prior to the breath test, he testified that he likely went to the nearby front desk, which was no more than ten feet away, and he could still see defendant through a large eight-foot by four-foot window. According to the plain language of the rule, the breaks in direct observation do not invalidate the observation. R.325.2655(1)(e). The administering officer could “reasonably determine” that defendant did not smoke, regurgitate, or place anything in his mouth during the breaks, in part because defendant’s hands were handcuffed behind his back, and in part because the officer maintained his peripheral observation of defendant. For these reasons, the court found no violation of the administrative rule occurred and the Datamaster results are reliable and admissible.
Although many cases have ruled against suppression, these cases must still be taken on a case-by-case basis, because there is no “bright line rule.” Thus, breath tests are still suppressed when the 15 minute observation rule is not followed, and if it wasn’t in your case, then you should discuss with your attorney if a motion asking for suppression is warranted.
[i] People v. Rexford, 228 Mich. App. 371, 579 N.W.2d 111 (1998)
[ii] People v. Willis, 180 Mich. App. 31, 35–36, 446 N.W.2d 562 (1989)
[iii] People v. Krulikowski, 60 Mich. App. 28, 31, 230 N.W.2d 290 (1975).
[iv] People v. Carter, 78 Mich. App. 394, 397, 259 N.W.2d 883 (1977), modified 402 Mich. 851, 261 N.W.2d 182 (1978). See also People v. Kozar, 54 Mich. App. 503, 509, 221 N.W.2d 170 (1974).
[v] People v. Tipolt, 198 Mich. App. 44, 46, 497 N.W.2d 198 (1993).
[vi] People v. Jacobsen, 205 Mich. App 302, 305; 517 NW2d 323 (1994), rev’d on other grounds 448 Mich. 639 (1995), citing People v. Kozar, 54 Mich. App 503, 509 n2; 221 NW2d 170 (1974).
[vii] People v. Wager, 460 Mich. 118; 594 NW2d 487 (1999)
[viii] People v. Fosnaugh, 248 Mich. App 444, 450; 639 NW2d 587 (2001).