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The Attorneys at Angles Law Firm, LLC have used the following Missouri Breath Test Alcohol Motions to successfully defend persons charged with violating Kansas City Missouri DWI Laws: IN THE DISTRICT COURT OF JOHNSON COUNTY, KANSAS STATE OF KANSAS, Plaintiff, v. Case No. 07CR Court 5 BILLY Client, Defendant. Motion to Suppress Breath Test Comes now Billy Client, by and through the undersigned, and moves the Court to suppress from evidence the alleged Intoxilyzer 5000 breath test and its result in this matter. In support, Client suggests the following: Factual Background Following his arrest by Trooper Brame, Client submitted to an Intoxilyzer 5000 breath test. Brame testified at the preliminary hearing he is trained to check a subject's mouth prior to administering a breath test and that failure to do so renders the test result invalid. Brame specifically remembering checking Client's mouth. He testified twice that he asked Client if he had anything in his mouth[3]. Brame allegedly conducted this mouth check at the police station, and before the 20 minute observation period. The mouth check occurred after the PBT. Interestingly, the Intoxilyzer print-out shows the observation period began at 00:46, which coincides exactly with the video showing Brame and Client's arrival at the Johnson County Sheriff's office. So, either Brame conducted the mouth check in the field after the PBT (which he denied) or in the car during the drive to the station (which is impossible) or at the station during the observation period (which he denied). Or, as the video tape with complete audio confirms, he failed to check Client's mouth altogether. Issue Presented Trooper Brame is trained that a valid Intoxilyzer test requires the subject's mouth be checked prior to a test. Brame failed to check Client's mouth. Is a breath test which does not comply with either the officer's training or the manufacturer's protocol admissible? Analysis The State bears the burden of proving the lawfulness of a search and seizure. K.S.A. 22-3216(2). The State must lay a foundation demonstrating the test was conducted in a reasonable manner as required by the Fourth Amendment. Schmerber v. California, 384 U.S. 757 (1966). That required foundation includes a showing that the proper testing procedures were folowed. State v. Bishop, 264 Kan. 717 (1998). The Kansas Department of Health and Environment (KDHE) has issued a protocol for the Intoxilyzer 5000. In addition, the manufacturer has a published protocol which must be followed for a successful breath test. "Equipment shall be operated strictly according to description provided by the manufacturer and approved by the department of health and environment." K.A.R. 28-32-1(3)(emphasis added). In this case, Billy Client is captured on video/audio during his arrest, arrival at the station, and the observation period before the breath test. At no time did Trooper Brame ask if Client had anything in his mouth or physically check the inside of Client's mouth. The Kansas Court of Appeals has recently dealt with a similar situation. See State v. Perry, 118 P.3d 178 (2005) (unpublished; attached). There, the arresting officer believed he could rely on Perry's representation that he did not have anything in his mouth. He failed to physically inspect the inside of Perry's mouth, as required by the manufacturer's protocol. In affirming the district court's suppression, the appellate court held: However, if the Intoxilyzer 5000 manufacturer's protocol calls for a visual inspection of the suspects's mouth, then strict compliance with that procedure is mandated. Id. (emphasis added). As the Perry court noted, the State has the burden of of laying a proper foundation that the manufacturer's protocol was followed -- strictly. Client's facts are even more egregious in that Trooper Brame not only failed to check Client's mouth, but he failed to even ask Client if he had anything in his mouth. The State cannot lay a foundation that Brame followed his training and the manufacturer's protocol. Accordingly, this Court should suppress from evidence the breath test result. Conclusion Trooper Brame did not strictly comply with the Intoxilyzer 5000 manufacturer's protocol when he administered the test to Billy Client. As a result, the State cannot lay the proper foundation for admission of this test, and the results should be suppressed from evidence at the trial of this matter.
Respectfully submitted, By___________________________ Christopher J. Angles 17991 THE ANGLES LAW FIRM, LLC 11900 College Blvd. Suite 310 Overland Park, Kansas 66210 (913) 341-3600 (913) 338-4458 FAX ATTORNEY FOR DEFENDANT [1] See attached transcript at p.48-49 ln. 23-25; 1-3 |
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