Police Officers Are Not Always Videotaped During a DUI Stop In Utah

Interviewer: Are they always going to be videoed when they’re going to use the portable breathalyzer?

Matthew Nebeker: Not always, no.  There are some departments that don’t even have video in their cars.  A lot of departments now are moving to the video on their uniforms, the body cams, but no, there’s not always a video. I had one the other way that it was a highway patrol case and the video didn’t start and I thought well, how can the video doesn’t start sooner when the officer first arrives and the stuff like that.  And it’s because this officer arrived late.  There was already another officer there and that officer at this highway patrol, his camera wasn’t working, it was inoperable.

A Video is Recorded in Almost 50% of the DUI Stops in Utah

The first officer that arrives, he’s on scene and doing investigation and doing everything and then, the other officer pulls up and his camera starts and that’s where my video starts and so, had I not scheduled the case for a hearing and asked about where is the rest of my video, how come it doesn’t start when you pull up, I wouldn’t have realized and they wouldn’t have told me that the other officer’s video wasn’t working and that’s why a whole bunch of this important conversation is not recorded.  And yes, so the answer to the question is no.  Maybe 50 per cent of the time you get a video.

Police Officers Check to See if a Subject is Burping or Belching to Determine the Level of Impairment

Interviewer: A police officer will check to see if someone’s burping or belching, if they’re doing something like that before, and why is that?

Matthew Nebeker: If the individual has alcohol in their stomach and that hasn’t been absorbed yet, it’s just waiting there and they burp and they show up or hiccup into their mouth, they’ll get a little bit sick or something or they had some bad food whatever, and that alcohol comes up into their mouth, gets lodged in the back of their throat or on their piercing or in there some of the dental work or something like that, then when they blow into the machine, into the Intoxilyzer machine, that alcohol could come off whatever it’s stuck on there and then going into the machine and the machine could register it and give them a higher number.

The Intoxilyzer Has a Built In Interference Detector to Detect Residual Alcohol

Now, they say, the machine has a built-in interference detector.  When the machine sees that number jumping up really quickly because of maybe mouth alcohol – and they call it residual amount of alcohol – it’s supposed to indicate an error but once again, who knows if it’s working or not.  They don’t calibrate that, they don’t check that to see if it’s working as far as I know.

People Mistakenly Refuse the Intoxilyzer as they’ve Already Performed the Portable Breath Test

Interviewer: A lot of people think that because they’ve taken a breathalyzer, do you think a lot of people refuse it because they think there’s not going to be any evidence against them?

Matthew Nebeker: Yes.  That happens quite a bit.  They refuse the breathalyzer one, because I mentioned earlier, they feel like they’ve already done the portable one, why does the officer have to do another one, and then second of all, “Yes, I’ll refuse the breath test and then they won’t have any evidence against me”, but they have, and we’ve talked about this before, is warrant.  They can have what they call an electric warrant now. Basically, the officer can get on the computer and fill out an affidavit for a search warrant to get the driver’s blood.

It is Advisable to Submit to a Chemical Test and Avoid the Driver’s License Sanctions

Once it’s filled, it’s sent by an email to whoever the judge is that’s on call, the judge will review it and most of the time, they do authorize the warrant and they’ll come back and they’ll take the blood and they’ll have five officers hold you down and stick the needle in your arm and get the blood if they have to. So, most of the time, they’re going to get the evidence anyway, so I always advise my clients to submit to the chemical test and you’ll avoid the refusal, you’ll avoid the long term driver’s license sanctions and we’ll do with the rest of it in court and with the hearings with the driver’s license division.

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