UHP Commander charged with DUI

[Iceaxe]

You Guys are going to love this one....
The cop who busted hundreds for DUI now says the test and machines are faulty....

Sobriety exam: Ex-DUI chief calls test faulty
Fights own bust, says the breath machine unreliable
By Nate Carlisle - The Salt Lake Tribune

The former Utah Highway Patrol lieutenant who led the state's anti-drunken driving efforts until his arrest for driving under the influence of alcohol claims the sobriety tests administered to him are unreliable.

Motions filed in Draper Justice Court on behalf of former Lt. Fred Swain also state that portable breath-testing machines are fraught with problems.

Benjamin Hamilton, lawyer for former Lt. Fred Swain, is asking a judge to suppress results of a stimulus and breath test and to dismiss his class B misdemeanor charge of driving under the influence of alcohol.

Swain claims the Draper police officer who administered the breath test failed to check Swain's mouth for foreign matter and did not observe Swain for 15 minutes prior to the test.

Also, the machine used to test Swain's breath was not approved by the Utah Department of Public Safety, as required by law, according to one of Swain's motions. The machine was not subject to calibration and maintenance required by the department, Swain says.

"There are so many potential problems with machines of this type, that the department . . . has deemed that only machines certified by the department can be used for evidentiary purposes," states Swain's motion.

Another motion asks the court to preclude testimony of an eye stimulus test given to Swain. The ex-trooper claims the officer did not follow proper procedure during the test, in which the officer observes the subject's eyes as it looks at an object, but does not specify what the officer might have done wrong.

Hamilton, said Tuesday the motions draw from testimony given by Draper police officer Kevin Easter during a hearing to determine whether Swain retained his driver's license. Hamilton declined to elaborate on Easter's testimony. Swain retained his license.

"It's our contention there was various violations [in administering the test]," Hamilton said. "It's the city's burden to show there were not."

Swain was the commander of the UHP DUI unit. About 2:25 a.m. on June 23, Swain crashed his UHP patrol car into a concrete barrier on Bangerter Highway near 400 West.

In a written report, Easter stated Swain was "acting strange" and wouldn't stand near officers or troopers as they questioned him. Easter detected an odor of alcohol on Swain, who was "very impaired" as he filled out a statement, according to Easter's report.

Swain eventually submitted to sobriety tests. Draper police said a breath test placed Swain's blood-alcohol level at 0.12 percent. Utah's legal limit is 0.08 percent.

Swain's DUI charge carries a possible penalty of six months in jail. The Draper city prosecutor has said the standard punishment for first-time DUI offenders is two days in jail and a $1,400 fine.

[JP]

plea bargained down to open container, yada-yada.

With the right lawyer your average motorist can have this done. How do you think you end up with repeat offenders who still hold their license?

[accadacca]

Anyone knows that their equipment only works on the public. If an officer is tested you cant trust the results. Come on people...

[Sombeech]

They should just give him another paid vacation until they can confirm that.

[Scott Card]

You Guys are going to love this one....
The cop who busted hundreds for DUI now says the test and machines are faulty....

Sobriety exam: Ex-DUI chief calls test faulty
Fights own bust, says the breath machine unreliable
By Nate Carlisle - The Salt Lake Tribune

The former Utah Highway Patrol lieutenant who led the state's anti-drunken driving efforts until his arrest for driving under the influence of alcohol claims the sobriety tests administered to him are unreliable.

This is real standard stuff fellers. The machine must be shown to be working properly and certified before the evidence can be deemed reliable and admissible. As for the portable tests, I have seen portable tests be .05 off from the actual certified tests and/or even another portable. There are so many variables on these machines and how the test is administered. The machines test deep lung air which is supposed to be close to actual blood alcohol. The reason for the "Baker" check or mouth check is to remove any foreign material that may absorb alcohol and give a falsely high test. The officer is to wait 15 minutes from checking the mouth so as to remove any of the mouth alcohol and then do the breath test (the one at the station) If you throw-up in your mouth then blow, your test can be screwed up because of the stomach alcohol. Therefore, if the officer checks up and you have some acid reflux or throw up in your mouth, then the mouth check must be done again and the time restarted. Also, any diabetic may screw up the machine due to the acetone in their breath which closely resembles alcohol, at least to the machine. I have had several DUI's dismissed for clients due to the machines not being reliable or the officer not following proper procedures to insure a fair test. You want a reliable test particularly when you are close to the legal limit. These really are routine and important defense motions to insure fairness. I'm sure you'd all want the same protections if your neck was on the chopping block. Sorry, probably more info than you wanted

[Iceaxe]

This is real standard stuff fellers.

I'm just poking fun at how the view is sure different when standing in the other guys shoes...... You know damn well this ex-cop has told more then one DUI suspect that the test was full-proof.

I'm also willing to bet the reason that Benjamin Hamilton is Swain's lawyer is because Hamiltom used to mop the floor with some of Swain's DUI cases.

If ya can't beat them, join them

[Scott Card]

I've had my share of police clients.

BTW, the best "story" (cop lie) I heard recently was that a cop told an alleged sex offender after a couple of hours of interviewing, that the interview room was equipped with "thermal imaging" and that when the guy was denying any wrong doing the thermal imaging was having some serious spikes. HUH? Well the guy ended up confessing.