Lead Opinion
OPINION
T1 The State of Utah appeals from an interlocutory order granting the defense's motion to suppress breath alcohol concentration results from an Intoxilyzer 8000 machine (Intoxilyzer). The State argues that the trial court erred in ruling that a foundational requirement for the admission of Intoxilyzer results, a fifteen-minute observation period, was not satisfied. In the alternative, the State contends that the trial court erred in excluding the test results because the fifteen-minute observation period required by State v. Vialpando,
BACKGROUND
12 On November 18, 2008, the Springville Police Department received a tip that an intoxicated driver was in a white car without license plates and proceeding westbound on River Bottom Road. Two patrol officers spotted a vehicle matching the description and attempted to pull it over. After a short pursuit, the vehicle pulled into the parking lot of a liquor store and stopped. As officers approached the vehicle, it started to roll back toward the officers' car. While one officer prevented the vehicle from rolling any further, the other officer instructed the driver to engage his emergency brake. After the car was stopped, the officers determined that the driver was Randall Matthew Relyea.
T3 While talking to Relyea, the officers noticed that his eyes were bloodshot and that his speech was slow and slurred, and at least one officer could smell alcohol on Relyea's breath. However, Relyea denied that he had been drinking. After performing three field sobriety tests, the officers determined that Relyea was too impaired to drive. Another officer (the Arresting Officer), who arrived at the seene during the field sobriety tests, then cuffed Relyea's hands behind his back and placed him under arrest.
T4 Following the requirements of State v. Baker,
15 The State charged Relyea with driving under the influence of alcohol or drugs pursuant to Utah Code section 41-6a-502. See Utah Code Ann. § 41-62-502 (2010)
1 6 The court granted the request and held an evidentiary hearing on June 15, 2009. At that hearing, Relyea testified that he suffered from gastroesophageal reflux disease, commonly referred to as GERD, that caused him to "belch or regurgitate up through the back of [his] throat when ... sleeping ... [and] during the day." Relyea also explained that his symptoms were aggravated by alcohol use but that he could "mask" and "control" his symptoms so that there might not be sounds or other signs that he was experiencing the symptoms. Relyea stated that while seated in the backseat of the patrol car, he "was having severe regurgitation and belching" but quickly swallowed down any residue. Relyea did not notify the Arresting Officer of his condition. Further, Relyea could not recall when exactly he experienced these symptoms or whether he was burping "while breathing on the [Intoxilyzer]." Re-lyea did testify, however, that when drinking alcohol his condition is "almost constant."
T7 On June 18, 2009, the trial court entered a Ruling and Order on Defendant's Motion to Suppress Intoxilyzer Results, granting Relyea's motion. The court reasoned that under State v. Vialipando,
18 In response to the court's ruling, on July 16, 2009, the State filed a Notice of Intent to Appeal and Motion for Leave to Supplement the Record. In this Motion, the State requested that the court allow the State to supplement the record with expert testimony to demonstrate that, unlike the Breathalyzer machine (Breathalyzer) that was involved in Baker, the Intoxilyzer used to test Relyea did not require a fifteen-minute observation period to ensure an accurate result. The State conceded, however, that the court was bound to follow the holding of Vialpando because that case applied the analysis of Baker to Intoxilyzers
T 10 After allowing the evidence as an offer of proof, the trial court explained its initial ruling on the Baker issue by stating, "[Re-lyea ] testified he regurgitated, and I know we put that in our findings of fact, but that doesn't really matter. What matters is the officer ... said [he] wasn't observing [Re-lyea ] during this [twenty-one-] minute [period; ] . he admitted that." (Emphasis added.) The State then proffered the following evidence through counsel:
[The Arresting Officer] took Baker at [8:07 p.m. when the Arresting Officer] was six blocks away from the pоlice station. And according to the log from dispatch, he arrived there at the police station at [8:12 pm.] That's five minutes. From [8:12 p.m.] to [8:28 p.m.] ... that's [sixteen] minutes.... It seems to me that the Court's ruling was having to do with when he was in the vehicle, not under observation. We still have [sixteen ] minutes ... from when he left the vehicle.[4]
(Emphasis added.) Upon hearing the proffer, the trial court stated, "Now, that would be a ground for reconsideration if I misconstrued that fact." In response to Relyea's argument that the State had not presented this evidence at the prior suppression hearing, the trial court ruled that the Arresting Officer could testify as to the facts in the State's proffer as an additional "offer of proof." The court indicated, however, that it would not "change the ruling unless [the State could] show that [the court] misconstrued the record somewhere, then [the court would] be happy to change it."
11 The State called the Arresting Officer, who testified that he placed Relyea in the back of the patrol car at 8:07 p.m. and that they arrived at the police station at 8:12 p.m. After arriving at the police station, Relyea's hands were still cuffed behind his back, and the Arresting Officer "kept [his] eye on [Re-lyeal the whole time before administering the test." According to the Arresting Officer, he was within about five feet of Relyea from the time they arrived at the police station until Relyea took the Intoxilyzer test, a period of sixteen minutes. During that time, the Arresting Officer never heard or saw Relyea belch or regurgitate, nor did Relyea tell the Arresting Officer that he had belched or regurgitated. On cross-examination, the Arresting Officer admitted that he had not asked Relyea if he had burped or regurgitated while waiting at the police station before the test.
{12 Next, the State called James Brierly, an alcohol technician with the Utah Highway Patrol (the Technician). The Technician maintained and certified breath alcohol instruments and was familiar with the mechan-ies of the Breathalyzer-the machine used in Baker-and the Intoxilyzer used to test Re-lyea. The Technician testified that breath alcohol instruments attempt to measure "deep lung air," rather than mouth air, and that this was important because mouth aleo-hol is volatile and can "spike" measurements, leading to inaccurate results. The Technician noted that a fifteen-minute observation period was necessary for the older Breathalyzer in order to allow alcohol to dissipate from the mouth and to prevent erroneous results. In contrast, the Technician explained that the Intoxilyzer had a slope detector that would disallow a test if any mоuth alcohol was detected, thereby preventing erroneous test results. Thus, the Technician opined that a fifteen-minute observation period was not necessary to ensure the accuracy of Intoxilyzer results, but was still good practice to avoid delays caused by a disallowed test. After the State's presentation of evidence, Relyea cross-examined the Technician but he declined the trial court's invitation to offer his own evidence. The court then continued oral argument regarding the State's
1 13 On November 9, 2009, oral arguments resumed. At that hearing, the State focused its argument on whether the fifteen-minute observation period required by Baker should be required for newer machines, like the Intoxilyzer used to test Relyea. The State again asked the trial court to reconsider its prior ruling in light of the additional evidence and Relyea objected. Ultimately, the trial court allowed the State to "augment the record" with the additional evidence, explaining that it was "coming in." The trial court then offered Relyea the opportunity "to put anything in the record at this point because this is really your only opportunity to bring in an expert on this ... so that the issue could be properly framed and there would be an adversarial presentation of evidence." After clarifying that the trial court still intended to exclude the Intoxilyzer results under Viai-pando, Relyea decided not to present expert testimony concerning the need for a fifteen-minute observation period or to put anything else in the record.
T14 On January 7, 2010, the trial court issued its Findings of Fact, Conclusions of Law, and Order, and included without objection the State's evidence presented at the August 10, 2009 hearing. The trial court found that Relyea was burping and regurgitating on the five-minute ride to the police station; it did not make any finding that Relyea burped at any time thereafter. Rather, the trial court found that after arriving at the police station, the Arresting Officer did not hear or see Relyea burp or regurgitate, but also did not ask Relyea whether he burped or regurgitated. Although it made these additional factual findings, the trial court did not change its earlier ruling suppressing the Intoxilyzer results. Instead, the trial court reincorporated its reasoning from the June 18, 2009 ruling, concluding that the Arresting Officer had not met the Baker observation requirement. With regard to the State's contention regarding the continuing utility of the Baker standard, the trial court held that Viaipando required a fifteen-minute observation period before In-toxilyzer results could be admitted.
ISSUES AND STANDARDS OF REVIEW
115 On appeal, the State argues that the trial court erred in refusing to admit Intoxilyzer test results because the fifteen-minute observation period required by Viai-pando was satisfied by the Arresting Officer's continuous observation of Relyea for sixteen minutes. A trial court's determination that there was not a proper foundation for the admission of evidence will not be overturned "unless there is a showing of an abuse of discretion." Id. 118 (internal quotation marks omitted).
116 In the alternative, the State argues that the trial court erred in applying Vialpando's fifteen-minute observation requirement to Intoxilyzer test results because technological changes obviate the need for the requirement. "[Wle consider the trial court's interpretation of binding case law as presenting a question of law and review the trial court's interpretation of that law for correctness." State v. Stewart,
ANALYSIS
I. The State's Argument that the Arresting Officer Satisfied the Fifteen-Minute Observation Period Is Preserved
117 Before addressing whether the Baker requirements were satisfied by the
{18 On May 11, 2009, Relyea filed his motion to suppress the Intoxilyzer results. Relyea claimed that the test results were inadmissible because the Arresting Officer did not adequately observe Relyea on the ride to the police station and would not have noticed if Relyea burped or regurgitated. Nowhere in his motion and memorandum in support did Relyea assert that he, in fact, burped or regurgitated on the ride to the police station. In the State's June 1, 2009 opposition memorandum, it argued that the Baker observation period was satisfied during the entire twenty-one-minute period-3:07 pm. to 8:28 p.m. -from the time of arrest to the administration of the Intoxilyzer test. At that time, the State did not argue that there were sixteen minutes of continuous observation . after arrival at the police station. In Relyea's reply, he requested an evidentiary hearing "to present evidence regarding the issue of whether [Relyea) burped or regurgitated" on the ride to the police station. For the first time at that hearing, Relyea presented evidence that he suffered from gastroesophageal reflux disease and that he had regurgitated during transport. Based on this evidence, the trial court issued its June 18, 2009 ruling suppressing the In-toxilyzer results.
[ 19 The State responded with a motion to supplement the record. During the ensuing August 10, 2009 hearing, the State asserted both that the Arresting Officer had complied with Baker by observing Relyea for sixteen minutes after arriving at the police station and that the Baker test should be limited to Breathalyzers. With respect to the first issue, the State offered the testimony of the Arresting Officer, who testified that he and Relyea arrived at the police station at 3:12 p.m., and that he "had [Relyea] sitting on a bench with his hands behind his back{[,] and [that hel was about five feet to the west of [Relyea], directly west of [Relyea] where [he] could stand and watch him profile-wise the entire time." At the end of this hearing, the trial court deferred the argument on whether the record should actually be supplemented with this evidence, in order to allow both parties to compare the new testimony with the evidence presented at the initial suppression hearing. At the subsequent hearing on November 9, 2009, the State made several statements that Relyea argues resulted in a waiver of its argument that the Arresting Officer's sixteen-minute observation of Re-lyea after they arrived at the police station satisfied Baker. However, when viewed in the context of the State's arguments, we are not convinced that the State intended to abandon this argument or that Relyea or the trial court were convineed otherwise.
120 For instance, the State noted,
Baker addresses a [Breathalyzer] from back in 1959. That machine has changed so drastically in the years since [then] that Baker has not looked at this issue. So that's what we're asking. We don't think that you're bound by that holding. And so, therefore, you could go ahead and take a look at the evidence that we provided to the Court and find that the officer, based upon his expert testimony, even though he didn't comply with the 15 minutе observation, that you could still go ahead and allow that because that evidence does not go to admissibility.
(121 Relyea also argues that the State waived its argument that the Arresting Officer complied with Baker when it responded to the trial court's statement, "[WJhat the evidence still shows is that ... Baker wasn't complied with," by conceding, "[Wle agree with that, Judge. We're okay with that." Again, however, this statement was made in the context of the State's presentation of its alternative argument that the Baker rule is not required to assure the accuracy of Intoxi-lyzer results. The court's statement that Baker was not complied with was made immediately after the State argued that the court should follow an Idaho Court of Appeals case, which held that Intoxilyzer 5000
22 That the court and parties understood these apparent concessions were made for purposes of the alternative argument only is supported by Relyea's response,
[E ]ven though the [Arresting Officer ] testified that after he took Mr. Relyea out of the vehicle, he did observe him for [sixteen | minutes, it still doesn't cure Baker because Baker starts with a mouth check and he didn't redo the mouth check which is what happened in [Viaipando]. In [Vialpando,] the suspect regurgitated, the officer rechecked the mouth and that's when Baker restarts. He never did in our case here. The [Arresting Officer] from Mr. Relyea's case never did a rechеck. So just by observing him for the [sixteen] minutes when he got out of the car still doesn't cure Baker.
(Emphasis added.) Although the State had just made the statements that Relyea now claims operate as a waiver, Relyea apparently understood at the time that the State continued to advance its argument that the Arresting Officer had complied with Baker.
23 Accordingly, where the State argued that the Arresting Officer's observation of Relyea was sufficient under Baker, and Re-lyea addressed that argument immediately prior to the court's January 7, 2010 ruling, we believe the issue was "presented to the trial court in such a way that the trial court hald] an opportunity to rule on that issue." See Brookside Mobile Home Park, Ltd. v. Peebles,
II. The Trial Court Acted Within Its Discretion in Granting the State's Motion to Reopen the Evidence
124 Relyea contends that the State's expert testimony regarding the differences between Breathalyzers and Intoxi-lyzers was not properly admitted into evidence. Although we do not reach the issuе of whether Intoxilyzer results should be sub
25 The Utah Supreme Court has provided "two principles to which trial courts should refer in determining whether to revisit pretrial evidentiary matters." Id. 114. "First, a district court's decision on a pretrial motion to rehear an evidentiary matter should be made in light of the totality of the cireumstances" to "ensur[e]l a complete proceeding." Id. 115. "Second, the determination of whether or not to grant a pretrial motion to rehear an evidentiary matter should include consideration of any of the nonexclusive factors" provided by the supreme court. Id. 116. These factors include "[tlhe reason the proposed evidence was not produced at the first hearing"; "[IwJlhether [an] omission was deliberate or accidental, grossly negligent or merely careless"; "[wlhether the proposed evidence was lawfully obtained"; "[wlhether the proposed evidence will have a 'substantial effect' on the court's ruling"; "[wlhether permitting the evidence will unfairly prejudice the party against whom it is being offered"; "[the experience of the prosecutor"; "[the nature of the case"; "[the timeliness of the motion"; and "[the court's strong interest in controlling its docket and avoiding piecemeal litigation." Id. 117 (third alteration in original) (additional internal quotation marks omitted). In this case, the trial court had substantial discretion in determining whether to admit new evidence regarding Baker compliance, even though the State could have presented this evidence at an earlier hearing. See Bo-sung,
126 First, in considering the totality of the cireumstances, admission of the time of arrival at the police station allowed the trial court to gain a more complete description of the events leading to Relyea's Intoxilyzer test. See id. 115. The trial court indicated that evidence of the time of arrival "would be a ground for reconsideration if [the court] misconstrued that fact." Because the time of arrival at the station is a critical fact, the totality of the circumstances warranted the admission of this evidence "to ensur[e] a complete proceeding where the court [could] consider[] all relevant, constitutionally obtained evidence." Id. 112.
1 27 The nonexclusive factors listed by the supreme court also weigh in favor of admission. See id. 117. Although the State could have introduced evidence of the time of arrival at the police station prior to the trial court's June 18 ruling, its failure to do so was not strategic or othеrwise intended to disadvantage Relyea. See generally Stewart v. State,
III. The Arresting Officer's Sixteen-Minute Continuous Observation of Relyea Satisfies Baker and Vialpando
128 The State argues that the Arresting Officer satisfied the fifteen-minute observation period required by Baker and Vialpando and that the trial court erred in ruling that the results of the Intoxilyzer test were inadmissible. Under the facts present here, we agree.
29 Utah courts have adopted three foundational requirements to determine whether the results of a Breathalyzer test are admissible into evidence. See In re Oaks,
130 The only requirement at issue here is whether the fifteen-minute observation requirement was satisfied. The State concedes that the Arresting Officer was not "in a position to adequately monitor [Relyea] for regurgitation" and did not satisfy the above requirements on the five-minute drive from the seene оf the arrest to the police station. However, the State contends that the Arresting Officer satisfied this requirement by continuously observing Relyea for sixteen minutes after arriving at the police station. According to Relyea, because his mouth was not rechecked for foreign substances upon arrival at the police station, the Vialpando requirements were not satisfied.
131 A mouth check ensures that a suspect's mouth is clear of foreign objects prior to the test, however, nothing in Viaipando dictates repeated checking of the suspect's mouth in every instance where the officer's observation of the suspect is interrupted. Under Vialpando, " '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." Id. ¶18 (quoting State v. Carson,
132 In this case, the cireumstances indicate that no foreign substances were introduced into Relyea's mouth after the initial mouth check. Relyea was placed in the patrol car with his hands cuffed behind his back, thereby preventing him from introducing any foreign objects into his mouth. See Vialpando,
33 Thus, the remaining inquiry is whether the purpose of the observation period was satisfied during the sixteen minutes at the police station before the test. In Viaipando, this court explained,
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.
See id. 118 (citing State v. Gardner,
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 (8) nothing impeded the officer's powers of observation[ ] during the observation period.
Id.
T 34 The first requirement is satisfied here because Relyea did not "leave [the Arresting Officer's] side" after arriving at the police station. Accordingly, Relyea was in the Arresting Officer's presence throughout the entire sixteen-minute period prior to the administration of the test.
135 With regard to the second requirement, Relyea's hands were secured behind his back at the time of arrest and no foreign substances were in his mouth at that time. He remained handcuffed thereafter and had no opportunity to ingest or regurgitate anything during the minimum observation period. See Vialpando,
136 After the mouth check, Relyea was placed in the police car with his hands secured behind his back. Thus, even if the observation of Relyea during transport was not sufficient to satisfy Baker, the cireum-stances were such that Relyea had no opportunity to introduce foreign matter into his mouth. Onee they arrived at the police station, Relyea remained handcuffed and was within five feet of the Arresting Officer during the entire observation period. The Arresting Officer, who was also able to observe Relyea both visually and aurally, did not hear Relyea burp or regurgitate during the observation period. See Viaipando,
137 The third Viaipando requirement is also satisfied because the Arresting Officer's power of observation was not hindered during the observation period. Al though the Arresting Officer was preparing the Intoxilyzer for operation and did not keep a constant fixed gaze on Relyea, Relyea was "sitting handcuffed in front of him" and the Arresting Officer "was able to look at [Relyeal, look at the sereen, [and] look back at [Relyea]." The "undivided attention of the observing officer is not required," and officers may perform other tasks so long as they are still monitoring the suspect. See id. €18. The Arresting Officer was simultaneously able to focus on setting up the Intox-ilyzer machine and to observe Relyea for sixteen continuous minutes, with no other distractions interrupting his observation.
138 Because all three prongs under Vialpando аre satisfied, the State has established "a reasonable belief that [Relyea's] mouth was clear for the entire observation period." See id. 119. Therefore, we "conclude that the purpose of the observation period was satisfied and that the [IJntoxilyzer results were reliable." Id. In reaching the opposite conclusion, the trial court considered only the twenty-one-minute period that included the five-minute ride to the police station, presumably on the assumption that a second mouth check was required upon arrival. Under the facts present here, we con-
clude that it was not and that, therefore, the trial court exceeded its discretion by failing to consider whether the purposes of Baker were satisfied during the sixteen-minute continuous observation by the Arresting Officer that began upon arrival at the police station. Accordingly, we reverse the trial court's ruling suppressing the Intoxilyzer results and remand for further proceedings.
IV. The Admission of Additional Evidence Did Not Violate Relyea's Due Process Rights
189 According to the dissent, the trial court violated Relyea's due process rights when it allowed the State to augment the record because the shifting purpose of the hearings made the admission of the evidence fundamentally unfair. See infre 147. While we agree that the purpose of the hearings conducted by the trial court after its initial June 18, 2009 ruling evolved, we are not convinced that Relyea's due process rights were violated as a result.
40 Relyea had both notice and an opportunity to be heard on the Baker compliance issue. First, the trial court sent written notice to both parties that the August 10, 2009 hearing would address whether to allow the State to supplement the record, putting Relyea on notice that the trial court might do so. While the State's initial insistence that it was not asking the trial court to reconsider its prior ruling may have misled Relyea, the State expressly asserted a contrary position at the start of the August 10, 2009 hearing. Likewise, although the trial court described the evidence as an "offer of proof," the parties were on notice that the issue before the court was whether the State would be allowed to supplement the record with that evidence. Furthermore, the trial court al
[ 41 At the continuation of the hearing, the State asked the trial court "to reconsider its prior ruling," "taking into account all the supplemental evidence that we [presented]." Before deciding whether to do so, the trial court stated that Relyea "could certainly present any evidence [he] wanted] to the contrary." Relyea decided not to present any contrary evidence or to request additional time to do so. The trial judge then ruled, "I'm going to allow this evidence [the testimony from the Technician and Arresting Officer] to be considered-well, I'm going to allow the State to augment the record is what I should say because this is mew evidence that's coming im .... I'm allowing the record to be augmented." (Emphasis added.) The trial court's statement leaves no doubt that the evidence was admitted as part of the evidentiary record and not simply as a non-evidentiary offer of proof. Immediately thereafter, the trial court offered Relyea another opportunity to put on "anything" or to obtain an expert.
142 Only after Relyea rejected that last opportunity to be heard did the trial court entеr its findings of fact based on all of the evidence admitted before and after its initial ruling. Despite its consideration of the additional evidence, the trial court reaffirmed its holding that the Intoxilyzer results were inadmissible under Viaipando, rejecting the State's argument that the observation requirement was unnecessary and that it had been met. Based on this record, we do not agree with the dissent that "neither the parties nor the trial court had a firm understanding of what was happening with these proceedings." See infra 1 52.
148 The trial court has considerable discretion in expanding the purpose of a hearing beyond the scope of the initial request as long as doing so is not arbitrary and capricious and does not lead to "an inequitable or unjust result." See State v. Bozung,
1 44 Additionally, although Relyea contests the admission of the Technician's expert testimony, he does not argue that the Arresting Officer's August 10, 2009 testimony was improperly admitted. Relyea actually incorporates that testimony into his brief on appeal, noting that "[the officer and Relyea arrived at the police station at 3:12 p.m.," without any indication that the inclusion of this evidence in the trial court's findings was unfair or done without adequate notice or opportunity to be heard. Instead, Relyea argues
CONCLUSION
1] 45 The Arresting Officer's continuous observation of Relyea for sixteen minutes satisfied the requirements of State v. Vialpando,
1 46 I CONCUR: STEPHEN L. ROTH, Judge.
Notes
. Because the material provisions of the statute have not changed, we cite the current version of the Utah Code Annotated for the convenience of the reader.
. Although it was initially assumed that the observation period was twenty-two minutes, it was later determined that only twenty-one minutes рassed between Relyea's arrest and the administration of the Intoxilyzer test. Because this one-minute time difference does not affect our analysis, all references to the time have been made uniform to avoid confusion.
. In this motion, the State incorrectly indicated that Salt Lake City v. Womack,
4. The times mentioned in this quote were changed from military time for the reader's convenience and to correct the initial confusion about the time mentioned supra note 2.
. While this court's decision in State v. Vialpan-do,
. The Intoxilyzer 5000 is an earlier model of the Intoxilyzer 8000 used to test Relyeа.
. Relyea does not contest that the Arresting Officer's observation was adequate after arriving at the police station. Relyea's brief states, "When they arrived at [the] station and the officer began to observe Relyea in a manner sufficient to ensure nothing new was introduced into Relyea's mouth [,] the [Arresting Officer] failed to check to ensure it was free from any foreign matter." (Emphasis added.)
. Because we conclude that the requirements of Vialpando were satisfied, we need not consider whether a fifteen-minute observation period, like required to assure the accuracy of Breathalyzer results, is also necessary before the results of an Intoxilyzer test can be admitted. Compare State v. Charan,
. Although the dissent refers to the August 2009 and November 2009 hearings as the "Offer of Proof Proceedings," see infra 147, the issue before the trial court and the notice to the parties in both instances, indicated that the issue to be decided was whether the State's evidence would be accepted as a supplement to the record.
Dissenting Opinion
(dissenting):
I 47 I respectfully dissent from the majority opinion because I believe our reliance on the August 2009 and November 2009 proceedings (the Offer of Proof Proceedings) is limited by the narrow purpose for which the trial court permitted those proceedings to take place, which was not to put on new evidence and reargue whether State v. Baker,
complied with, but to lay the groundwork for the State's argument that Baker is obsolete in light of advancements in Breathalyzer technology. I believe the majority's reliance on the Offer of Proof Proceedings for off-topic evidence of Baker compliance is fundamentally unfair and violates Relyea's due process rights.
{48 The parties and the trial court were confused as to what to call the Offer of Proof Proceedings and what rule authorized them. The State and trial court proceeded as though the purpose of the Offer of Proof Proceedings was limited and as though this was not a continuation, reopening, or reargument of the Baker compliance issue, but an entirely separate and distinct aspect of the case. The parties and the trial court proceeded accordingly, leading Relyea to expect that the State would not turn around and rely on the Offer of Proof Proceedings to challenge the trial court's Baker compliance ruling. The majority's opinion, however, permits just that.
T49 The State titled its request for an additional evidentiary hearing, "Motion For Leave To Supplement Record," and stated, "If the court permits the [State a short hearing in which to supplement the record, the [S]tate will not ask the court to reconsider its [Baker compliance] ruling...." (Emphasis added.) Relyea opposed the motion, arguing that the Utah Rules of Criminal Procedure do not allow the State's request becаuse it amounted to a request for a "re-ruling" on the suppression issue. During the
50 The State offered its evidence during the August 2009 proceeding. At the conclusion of the proceeding, the trial court "recognize{d that] this [was] the State's attempt to augment the record" but still asked Relyea's trial counsel if she "want[led] to present anything else," to which counsel responded in the negative.
§ 51 After the State put on its evidence in the August proceeding, the parties reconvened in November 2009, at which time the State explained that it needed "another ruling from [the court]" on Baker and proceed'ed to argue why Baker should be abandoned. Specifically, the State asked the trial court to "reconsider its prior [suppression] ruling," though the State's arguments in support of that request were confined to the Baker obsolescence issue and not the Baker compliance issue addressed in the original suppression ruling. The State suggested that the trial court "look at [its suppression ruling] again[,] taking into account all the supplemental evidenсe" that it proffered in August 2009. The State asserted that this was procedurally permissible because Relyea's initial motion to suppress should have actually been considered a motion in limine and the "trial court is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling," see Tschaggeny v. Milbank Ins. Co.,
$52 In other words, neither the parties nor the trial court had a firm understanding of what was happening with these proceedings. However, despite this confusion, the
158 I agree with the majority that the trial court has considerable discretion to grant a party's motion to supplement the record and "allow the introduction of newly discovered evidence" as well as "evidence that could have been introduced during [al prior hearing." See supra 124. However, these were not proceedings to supplement the record of Baker compliance, nor were they billed by the State or trial court as proceedings to continue or to reopen the April 2009 suppression hearing in all of its aspects,. These were offer of proof proceedings, which are generally intended to permit a party to "create an appellate record of what the evidence would have shown," State v. Boyd,
order to "preserve the record for appellate review," Loas Vegas Convention & Visitors Auth. v. Miller,
T54 The majority's indulgence of the State's Baker compliance argument is based on new evidence presented in the August 2009 Offer of Proof Proceedings that the Arresting Officer observed Relyea for sixteen minutes in the police station before administering the Intoxilyzer test (the observation evidence). Arguably, the trial court should not have permitted the State to present that, or any other evidence that was beyond the narrow seope of the proceedings, and Relyea should have objected to its admission. Nonetheless, the fact that the State was able to introduce evidence extrinsic to the purpose of the proceedings does not render the nature of the majority's reliance on that evidence proper.
1 55 Additionally, when the trial court stated that the observation evidence "would be a ground for reconsideration if [the court] misconstrued that fact," the State admitted that the observation evidence "wasn't presented." The trial court then explained that any new evidence offered in the Offer of Proof Proceedings "wo[uld not] change the [court's June 18 suppression] ruling unless [the State could] show that [the court] misconstrued" facts that were on the record "at the time the motion was submitted." When the trial court ruled on the suppression motion, the record reflected a twenty-one minute time period between the mouth check and the Intoxilyzer test, with no differentiation made as to how much of that time was spent in the patrol car and how much was spent in the police station. The trial court correctly determined that it could not reconsider its ruling based on the State's newly presented evidence and that even if it did reconsider its ruling, the observation evidence would not change its determination that Baker was not satisfied. The State appeared to agree with this holding, conceding that despite the observation evidence, the Arresting Officer still did not comply with the Baker requirements
1 56 Consequently, in light of the repeated assurances given to Relyea that the Offer of Proof Proceedings were limited in seope and purpose and would not subsequently be used to revisit the Baker compliance issue, and in recognition of the fact that an offer of proof may or may not constitute evidence that can support a finding of fact, I respectfully dissent from the majority opinion. I would determine that the trial court did not abuse its discretion by suppressing the Intoxilyzer test results, even in light of the observation evidence proffered during the Offer of Proof Proceedings, because of the nature of those proceedings and the due process concerns implicated by the State's and trial court's repeated assurances to Relyea throughout those proceedings. To disregard the import of the State's and trial court's repeated assurances to Relyea, and to then use evidence proffered in the Offer of Proof Proceedings tо reverse the trial court's decision, is fundamentally unfair. The trial court correctly reaffirmed its ruling on Relyea's motion to suppress, and I would accordingly affirm that ruling.
. The majority argues that because Relyea did not raise any issues of due process, I should not be concerned with such issues. This, however, misconstrues my concern. The due process violation I identify is not something Relyea would have argued on appeal. Rather, it is a result of the majority's decision to reverse and remand, relying on the Offer of Proof Proceedings in a manner that transforms those proceedings into something more than they actually were. Indeed, I interpret Section IV of the majority opinion as underscoring my due process concerns, in that it demonstrates in even greater detail how confused and unclear the trial court and parties were throughout the Offer of Proof Proceedings.
. The majority characterizes the Offer of Proof Proceedings as a forum for the State to both reassert its Baker compliance argument and argue that whether Baker was satisfied is immaterial because Baker should be considered obsolete. See supra TM 21-22.
. I acknowledge that the situation here does not amount to res judicata. See generally Macris & Assocs., Inc. v. Neways, Inc.,
. The State appeared to concede that Baker was not complied with at least one other time during the proceedings. During the November 2009 proceeding, the State, in requesting that the trial court reconsider its ruling granting Relyea's motion to suppress, stated,
[¥Jou could go ahead and take a look at the evidence that we provided to the [clourt and find that the officer, based upon his expert testimony, even though he didn't comply with the 15 minute observation, that you could still go ahead and allow [the Intoxilyzer test results] because that evidence does not go to admissibility. We believe it goes to the weight.