State v. Relyea

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

State of Utah, ) OPINION
)
Plaintiff and Appellant, ) Case No. 20100077‐CA
)
v. )
) FILED
Randall Matthew Relyea, ) (February 24, 2012)
)
Defendant and Appellee. ) 2012 UT App 55

‐‐‐‐‐

Fourth District, Provo Department, 081403708
The Honorable Samuel D. McVey

Attorneys: Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellant
Douglas J. Thompson, Provo, for Appellee

‐‐‐‐‐

Before Judges McHugh, Davis, and Roth.

McHUGH, Presiding Judge:

¶1 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, 2004 UT App 95, 89 P.3d 209, should no longer be
required due to changes in equipment and technology. We reverse and remand.
 BACKGROUND

¶2 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.

¶3 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 scene during the field
sobriety tests, then cuffed Relyea’s hands behind his back and placed him under arrest.

¶4 Following the requirements of State v. Baker, 355 P.2d 806 (Wash. 1960), applied
by the Utah Supreme Court in Salt Lake City v. Womack, 747 P.2d 1039 (Utah 1987), the
Arresting Officer inspected Relyea’s mouth to insure that it was free from “foreign
objects.” The officer made Relyea spit out chewing tobacco and then rechecked his
mouth, determining that it was empty. The Arresting Officer informed dispatch that
the mouth inspection was performed at 3:07 p.m. Afterwards, the Arresting Officer
transported Relyea to the police station in the backseat of a patrol car. Although he
could see Relyea through his rearview mirror, the Arresting Officer admitted that he
would not have noticed if Relyea “burped or regurgitated” during the drive. At 3:12
p.m., the Arresting Officer and Relyea arrived at the police station. From that point
forward, the Arresting Officer was able to observe Relyea, who was still handcuffed.
The Arresting Officer did not recheck Relyea’s mouth for foreign objects after arriving
at the police station. At 3:28 p.m., the Arresting Officer administered the Intoxilyzer
test. The results indicated that Relyea had a breath alcohol content of 0.237.

20100077‐CA 2
¶5 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. § 41‐6a‐502 (2010).1
Subsequently, Relyea filed a Motion to Suppress Intoxilyzer Results, arguing that he
was not adequately observed for fifteen minutes prior to the administration of the test.
Specifically, Relyea asserted that the Arresting Officer would not have noticed if Relyea
burped or regurgitated in the backseat of the patrol car. In response, the State argued
that the Arresting Officer’s observation of Relyea during the twenty‐one minute period
between the arrest and the test was with sufficient “clarity and accuracy” to satisfy the
Baker standard.2 In reply, Relyea requested an evidentiary hearing to determine
whether Relyea “burped or regurgitated between the time [the Arresting Officer]
checked [his] mouth and transported him to the police station to perform the
[I]ntoxilyzer test.”

¶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].” Relyea did testify, however, that when
drinking alcohol his condition is “almost constant.”

1
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.
2
Although it was initially assumed that the observation period was twenty‐two
minutes, it was later determined that only twenty‐one minutes passed 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.

20100077‐CA 3
¶7 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. Vialpando, 2004 UT App 95, 89 P.3d 209 (applying the requirements of
Baker, 355 P.2d at 809‐10), the ride to the police station with Relyea in the backseat
“impeded the [Arresting Officer’s] powers of observation[]” because the Arresting
Officer would not have noticed if Relyea was burping or regurgitating. See id. ¶ 18
(holding that the purpose of the observation period is met if three criteria are satisfied,
including that the “officer’s powers of observation” were not impeded). Accordingly,
the court determined that the State had not established the foundation required for the
admission of the Intoxilyzer results. Even without the Intoxilyzer results, however, the
court determined that there was “sufficient evidence to support probable cause to go to
trial.”

¶8 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.3 The trial court scheduled an evidentiary hearing for August 10, 2009.
In response, Relyea filed a motion to strike the evidentiary hearing, requesting instead
that the trial court hold oral arguments on the issue of whether the State should be
allowed to supplement the record. While the trial court did not strike the evidentiary
hearing, it issued an order stating, “The Evidentiary Hearing scheduled for August 10,
2009, will proceed after Oral Arguments on [the] State’s Motion to Supplement [the]
Record if the defense motion is denied. If the defense motion is granted, the evidentiary
hearing will be stricken.” Thus, the trial court left open the possibility that the record
would be reopened and additional evidence admitted.

3
In this motion, the State incorrectly indicated that Salt Lake City v. Womack, 747
P.2d 1039 (Utah 1987), also applied the analysis of State v. Baker, 355 P.2d 806, 809‐10
(Wash. 1960), to Intoxilyzers. However, the Womack decision actually involved test
results from Breathalyzers. Id. at 1040‐42.

20100077‐CA 4
¶9 At the August 10, 2009 hearing, the State modified its earlier position and
expressly requested that the trial court reconsider its June 18, 2009 ruling, in addition to
permitting the State to supplement the record. The court initially denied the State’s
motion to supplement the record because it was unaware of any facts or law in its
original ruling that it had misconstrued. However, the trial court allowed the State to
“do an offer of proof by putting on the evidence so [the State could] preserve [the
evidence].”

¶10 After allowing the evidence as an offer of proof, the trial court explained its
initial ruling on the Baker issue by stating, “[Relyea] 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 [Relyea] 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 [3:07 p.m. when the
Arresting Officer] was six blocks away from the police
station. And according to the log from dispatch, he arrived
there at the police station at [3:12 p.m.] That’s five minutes.
From [3:12 p.m.] to [3:28 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.”

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.

20100077‐CA 5
¶11 The State called the Arresting Officer, who testified that he placed Relyea in the
back of the patrol car at 3:07 p.m. and that they arrived at the police station at 3:12 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 [Relyea] 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 mechanics of the Breathalyzer—the machine
used in Baker— and the Intoxilyzer used to test Relyea. The Technician testified that
breath alcohol instruments attempt to measure “deep lung air,” rather than mouth air,
and that this was important because mouth alcohol 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
mouth 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 motion to supplement the
record with the new evidence provided by the Arresting Officer and the Technician to a
later date.

¶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

20100077‐CA 6
“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 Vialpando, Relyea decided not to present expert testimony concerning the
need for a fifteen‐minute observation period or to put anything else in the record.

¶14 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 Vialpando required a
fifteen‐minute observation period before Intoxilyzer results could be admitted.5
Accordingly, it again granted Relyea’s motion to suppress the Intoxilyzer results. On
interlocutory appeal, the State now challenges the trial court’s second ruling.

ISSUES AND STANDARDS OF REVIEW

5
While this court’s decision in State v. Vialpando, 2004 UT App 95, 89 P.3d 209,
assumes that Baker’s fifteen‐minute observation requirement for Breathalyzers applies
equally to Intoxilyzers, there is no indication in the opinion that the differences between
the two technologies were brought to the Vialpando court’s attention. See Vialpando, 2004
UT App 95, ¶¶ 13‐19. In fact, the Vialpando court appears to have used the terms
Breathalyzer and Intoxilyzer interchangeably. For instance, the court parenthetically
described the 1960 Baker decision as “articulating foundation elements for [I]ntoxilyzer
tests.” See id. ¶ 14. However, the Baker decision addressed the foundation requirements
for Breathalyzers, not Intoxilyzers. See Baker, 355 P.2d at 809.

20100077‐CA 7
¶15 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
Vialpando 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. ¶ 13 (internal quotation marks omitted).

¶16 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. “[W]e 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, 2011 UT App
185, ¶ 6, 257 P.3d 1055 (internal quotation marks omitted), cert. denied, 263 P.3d 390
(Utah 2011).

ANALYSIS

I. The State’s Argument that the Arresting Officer Satisfied the Fifteen‐Minute
Observation Period Is Preserved

¶17 Before addressing whether the Baker requirements were satisfied by the
Arresting Officer’s sixteen‐minute observation, we consider whether the State properly
preserved this argument. Relyea argues that the State abandoned this argument during
the November 9, 2009 hearing before the trial court. “[I]n order to preserve an issue for
appeal[,] the issue must be presented to the trial court in such a way that the trial court
has an opportunity to rule on that issue.” Brookside Mobile Home Park, Ltd. v. Peebles,
2002 UT 48, ¶ 14, 48 P.3d 968. To ensure that an issue is properly presented before the
trial court “(1) the issue must be raised in a timely fashion; (2) the issue must be
specifically raised; and (3) a party must introduce supporting evidence or relevant legal
authority.” Id. (internal quotation marks omitted). “[O]nce trial counsel has raised an
issue before the trial court, and the trial court has considered the issue, the issue is
preserved for appeal,” and trial counsel does not need to raise the issue repeatedly. See
id. While it is a close question, we are satisfied that the State adequately preserved this
issue.

20100077‐CA 8
¶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 p.m. to 3:28 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 Intoxilyzer 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 he] 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 Relyea 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 convinced otherwise.
¶20 For instance, the State noted,

20100077‐CA 9
 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 minute observation, that you could still go
ahead and allow that because that evidence does not go to
admissibility.

(Emphasis added.) We agree with the State that this statement was an alternative
argument and not a concession that the Baker observation period was, in fact, not
satisfied. We interpret the State’s comments as an attempt to advance its alternative
argument that, even if the Baker observation period was not met, the trial court could
still admit the test results because the Baker observation period is unnecessary with
Intoxilyzers.

¶21 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, “[W]hat the
evidence still shows is that . . . Baker wasn’t complied with,” by conceding, “[W]e 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 Intoxilyzer 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 50006
results could be admitted in the absence of a fifteen‐minute observation period required
for Breathalyzer results. See generally State v. Charan, 971 P.2d 1165, 1167‐68 (Idaho
1998). Earlier at the August 10, 2009 hearing, the State had presented its argument on
Baker compliance. Upon completing its remarks on that point, the State moved to its
alternative argument that compliance was irrelevant. Due to the context in which this
statement was made and the State’s unequivocal prior argument that the sixteen
minutes of observation at the police station satisfied Baker, we are not convinced that

6
The Intoxilyzer 5000 is an earlier model of the Intoxilyzer 8000 used to test
Relyea.

20100077‐CA 10
the State intended to abandon its position that the Arresting Officer had complied with
Baker. Instead, we view the exchange as an inartful attempt to argue in the alternative.

¶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 [Vialpando]. 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
recheck. 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 Relyea 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 ha[d] an opportunity to rule on that issue.”
See Brookside Mobile Home Park, Ltd. v. Peebles, 2002 UT 48, ¶ 14, 48 P.3d 968. Our
conclusion is further supported by the fact that the trial court ruled on both issues. See
State v. Taylor, 2005 UT 40, ¶ 7, 116 P.3d 360 (holding that an issue was preserved
because the trial court had ruled on it); Arbogast Family Trust v. River Crossings, LLC,
2008 UT App 277, ¶ 11, 191 P.3d 39 (same), aff’d, 238 P.3d 1035 (Utah 2010). Therefore,
we hold that the issue of whether the Arresting Officer satisfied Baker was adequately
preserved.

II. The Trial Court Acted Within Its Discretion in Granting the State’s Motion to Reopen
the Evidence

20100077‐CA 11
¶24 Relyea contends that the State’s expert testimony regarding the differences
between Breathalyzers and Intoxilyzers was not properly admitted into evidence.
Although we do not reach the issue of whether Intoxilyzer results should be subject to
the same foundational prerequisites as Breathalyzer results, we address the
appropriateness of the trial court’s decision to reopen the evidence because the dissent
raises similar concerns with respect to the Arresting Officer’s new testimony about
Baker compliance. “[A] motion to reopen a case for the purpose of introducing further
evidence is addressed to the sound discretion of the court, and . . . such discretion
should generally be liberally exercised in behalf of allowing the whole case to be
presented.” State v. Bozung, 2011 UT 2, ¶ 12, 245 P.3d 739 (internal quotation marks
omitted) (citing Wasatch Oil Ref. Co. v. Wade, 92 Utah 50, 63 P.2d 1070, 1075 (1936)). This
approach serves to “protect[] society’s interest in ensuring a complete proceeding where
the court considers all relevant, constitutionally obtained evidence.” Id. (internal
quotation marks omitted). Furthermore, the trial court is not limited to reopening the
evidence to allow the introduction of newly discovered evidence but instead can admit
evidence that could have been introduced during the prior hearing. See id. ¶ 13. In
determining whether to reopen the evidence, however, the trial court must not exercise
its power in “a capricious and arbitrary manner which produces an inequitable or
unjust result.” Id. ¶ 12 (internal quotation marks omitted).

¶25 The Utah Supreme Court has provided “two principles to which trial courts
should refer in determining whether to revisit pretrial evidentiary matters.” Id. ¶ 14.
“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 circumstances” to “ensur[e] a complete
proceeding.” Id. ¶ 15. “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. ¶ 16. These factors include
“[t]he reason the proposed evidence was not produced at the first hearing”; “[w]hether
[an] omission was deliberate or accidental, grossly negligent or merely careless”;
“[w]hether the proposed evidence was lawfully obtained”; “[w]hether the proposed
evidence will have a ‘substantial effect’ on the court’s ruling”; “[w]hether permitting the
evidence will unfairly prejudice the party against whom it is being offered”; “[t]he
experience of the prosecutor”; “[t]he nature of the case”; “[t]he timeliness of the
motion”; and “[t]he court’s strong interest in controlling its docket and avoiding
piecemeal litigation.” Id. ¶ 17 (third alteration in original) (additional internal quotation
marks omitted). In this case, the trial court had substantial discretion in determining

20100077‐CA 12
whether to admit new evidence regarding Baker compliance, even though the State
could have presented this evidence at an earlier hearing. See Bozung, 2011 UT 2, ¶ 13.
In light of the two principles articulated by the supreme court, the trial court acted well
within its discretion.

¶26 First, in considering the totality of the circumstances, 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. ¶ 15. 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. ¶ 12.

¶27 The nonexclusive factors listed by the supreme court also weigh in favor of
admission. See id. ¶ 17. 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 otherwise intended to disadvantage Relyea. See generally Stewart v.
State, 827 A.2d 850, 873 (Md. Ct. Spec. App. 2003) (recognizing it is not an abuse of
discretion to reopen the evidence where “[t]he State [did] not attempt[] to deliberately
withhold evidence in order to present it at a later time and gain an unfair advantage”),
cited with approval in Bozung, 2011 UT 2, ¶ 17; Commonwealth v. Branch, 437 A.2d 748, 751
(Pa. Super. Ct. 1981) (“[T]his court has . . . permitted the reopening of a suppression
hearing record in order to permit the introduction of evidence inadvertently omitted by
the prosecution.”), cited with approval in Bozung, 2011 UT 2, ¶ 17. There is also no
suggestion that Relyea was prejudiced by the introduction of this evidence because
Relyea was able to cross‐examine the Arresting Officer and to introduce his own
evidence if he desired. See generally Bozung, 2011 UT 2, ¶ 17. Additionally, admission of
this evidence could have a “substantial effect” on the court’s ruling and, in our view, is
outcome determinative. See generally id. Therefore, we hold that the trial court did not
exceed its broad discretion in reopening the evidence to admit the Arresting Officer’s
testimony about the time of arrival at the police station and his subsequent observation
of Relyea.
III. The Arresting Officer’s Sixteen‐Minute Continuous Observation of Relyea Satisfies
Baker and Vialpando

20100077‐CA 13
¶28 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, 571 P.2d
1364, 1367 (Utah 1977) (Maughan, J., dissenting) (citing State v. Baker, 355 P.2d 806,
809‐10 (Wash. 1960)); State v. Vialpando, 2004 UT App 95, ¶ 14, 89 P.3d 209. In Vialpando,
those requirements were applied to the results of an Intoxilyzer, without analysis of
whether the rationale was equally applicable. See Vialpando, 2004 UT App 95, ¶¶ 13‐19;
see also supra note 5. First, the machine must have “been properly checked by a trained
technician, and . . . in proper working condition at the time of the test.” See Vialpando,
2004 UT App 95, ¶ 14. Second, the test must be “administered correctly by a qualified
operator.” Id. Third, a police officer must have “observed the defendant during the
fifteen minutes immediately preceding the test to ensure that the defendant introduced
nothing into his or her mouth during that time.” Id.

¶30 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 scene of 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.7 Thus,
despite the dissent’s concern with Relyea’s due process rights, the issue he asserts on
appeal is quite narrow. That issue is whether a recheck of the suspect’s mouth is
required after a period of interrupted observation when the purpose of the observation

7
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.)

20100077‐CA 14
period is otherwise satisfied under Vialpando’s three‐prong test. We conclude that it is
not.

¶31 A mouth check ensures that a suspect’s mouth is clear of foreign objects prior to
the test, however, nothing in Vialpando 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, 988 P.2d 225, 227 (Idaho Ct. App. 1999)). Accordingly, if
after an initial check of the mouth, the officer’s continuous observation of the suspect is
interrupted, a recheck is not required where “the suspect had no opportunity to ingest
or regurgitate anything” during the period of interrupted observation. See id.

¶32 In this case, the circumstances 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, 2004 UT App 95, ¶ 19.
Although Relyea did “regurgitate[] into his throat” on the ride to the police station, he
testified that he quickly swallowed down any residue prior to arriving at the police
station. And Relyea does not claim that any other foreign substances were introduced
into his mouth after the initial mouth check. Because Relyea had no opportunity to
introduce foreign substances into his mouth and he admits that he quickly swallowed
down any residue from the regurgitation into the “back of his throat” on the ride to the
police station, a subsequent check of Relyea’s mouth after arriving at the police station
was unnecessary.

¶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
Vialpando, 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

20100077‐CA 15
 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. ¶ 18 (citing State v. Gardner, 1998‐NMCA‐160, ¶ 12, 126 N.M. 125, 967 P.2d 465).

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 (3) nothing impeded the officer’s
powers of observation[] during the observation period.

Id.

¶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.

¶35 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, 2004 UT App 95, ¶ 19,
89 P.3d 209 (noting that the suspect was seated in the front seat of a patrol car with his
“hands handcuffed behind his back, preventing [the suspect] from placing anything in
his mouth”). While the defendant in Vialpando informed the officer when he vomited,
and the officer checked the defendant’s mouth after each occurrence to ensure that the
defendant’s mouth “was clear of foreign matter,” see id. ¶¶ 15‐16, we are convinced that
the purposes of Baker were likewise satisfied in this case.

¶36 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 circumstances were such that Relyea had no
opportunity to introduce foreign matter into his mouth. Once they arrived at the police
station, Relyea remained handcuffed and was within five feet of the Arresting Officer

20100077‐CA 16
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 Vialpando, 2004 UT App 95, ¶ 19 (“[The suspect] sat
next to the trooper for the entire fifteen‐minute period, and during that time the trooper
monitored, both visually and aurally, to ensure that [the suspect’s] mouth remained
clear.”). Furthermore, the trial court did not find that he burped or regurgitated after
arriving at the police station and Relyea could not recall whether he did so. And while
Relyea testified that he regurgitated during transport, he also indicated that it reached
only the back of his throat and that he immediately swallowed the residue. Under these
facts, Relyea had no opportunity to place any foreign substances in his mouth after the
initial mouth check.

¶37 The third Vialpando requirement is also satisfied because the Arresting Officer’s
power of observation was not hindered during the observation period. Although 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 [Relyea], look at the screen, [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
Intoxilyzer machine and to observe Relyea for sixteen continuous minutes, with no
other distractions interrupting his observation.

¶38 Because all three prongs under Vialpando are satisfied, the State has established
“a reasonable belief that [Relyea’s] mouth was clear for the entire observation period.”
See id. ¶ 19. Therefore, we “conclude that the purpose of the observation period was
satisfied and that the [I]ntoxilyzer 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 conclude 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

20100077‐CA 17
station. Accordingly, we reverse the trial court’s ruling suppressing the Intoxilyzer
results and remand for further proceedings.8

IV. The Admission of Additional Evidence Did Not Violate Relyea’s Due Process
Rights

¶39 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 infra ¶ 47.
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 allowed Relyea to cross‐examine the State’s witnesses and provided Relyea the

8
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, 971 P.2d 1165, 1167‐68 (Idaho Ct. App.
1998) (holding that even though a fifteen‐minute observation period was not satisfied, a
proper foundation for admission of Intoxilyzer 5000 results was met when an expert
testified that the observation period is “not really necessary to ensure accurate test[]”
results, but noting that whether foundational standards are satisfied must be
determined on a case‐by‐case basis), with Michael P. Hlastala, The Slope Detector Does
Not Always Detect the Presence of Mouth Alcohol, Champion Mag., March 2006, available at
http://www.nacdl.org/Champion.aspx?id=4599 (noting inadequacies in slope detectors
and advocating for duplicate tests fifteen minutes apart).

20100077‐CA 18
opportunity to present his own evidence. After allowing the State’s witnesses to testify,
the trial court specifically notified Relyea that he was free to present “anything else” he
wanted. Even when Relyea declined this invitation, the trial court deferred final
argument on whether it would accept the State’s new evidence or reconsider its original
ruling on the motion to suppress to a hearing scheduled for November 9, 2009.9

¶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] want[ed] 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 new evidence that’s coming in. . . . 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 nonevidentiary offer of proof. Immediately thereafter, the trial court offered Relyea
another opportunity to put on “anything” or to obtain an expert.

¶42 Only after Relyea rejected that last opportunity to be heard did the trial court
enter 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 Vialpando, 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 ¶ 52.

¶43 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, 2011 UT 2,

9
Although the dissent refers to the August 2009 and November 2009 hearings as
the “Offer of Proof Proceedings,” see infra ¶ 47, 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.

20100077‐CA 19
¶ 12, 245 P.3d 739 (“Indeed, we have long held that [a] motion to reopen a case for the
purpose of introducing further evidence is addressed to the sound discretion of the
court, and that such discretion should generally be liberally exercised in behalf of
allowing the whole case to be presented.” (alteration in original) (internal quotation
marks omitted)). Here, each time the focus of the hearings expanded, the trial court
afforded Relyea an opportunity to be heard after notice of that shift in purpose. See
generally Zinermon v. Burch, 494 U.S. 113, 126 (1990) (“[A due process] violation . . . is not
complete when the deprivation occurs; it is not complete unless and until the [court]
fails to provide due process.”). We are simply not convinced that a defendant’s choice
not to avail himself of the process offered constitutes a violation of his due process
rights. Instead, we conclude that Relyea was provided appropriate due process. See
generally Chen v. Stewart, 2004 UT 82, ¶ 68, 100 P.3d 1177 (noting that the level of due
process required “may vary from situation to situation,” depending on the
circumstances).

¶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 “[t]he 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 that Baker requires a mouth check whenever an officer’s observation is
interrupted, irrespective of how much time passes between the interruption and the
administration of the Intoxilyzer test. Contrary to the dissent’s contention that our
ruling is based on an expectation that Relyea “should have put on more evidence
pertaining to the Baker compliance issue or challenged the State’s offerings on Baker
compliance,” see infra ¶ 52, we expect neither. Our decision today is based on our
disagreement with the only argument Relyea raises on this issue, which is that the
Arresting Officer was required to recheck Relyea’s mouth in order to rely upon the
sixteen minutes of continuous observation at the police station. Accordingly, we do not
find the dissent’s contention that the admission of this evidence is “fundamentally
unfair and violate[d] Relyea’s due process rights” persuasive. See infra ¶ 47. Indeed,
this is an argument that is not advanced by Relyea.

CONCLUSION

20100077‐CA 20
¶45 The Arresting Officer’s continuous observation of Relyea for sixteen minutes
satisfied the requirements of State v. Vialpando, 2004 UT App 95, 89 P.3d 209.
Accordingly, the trial court’s order suppressing the Intoxilyzer results is reversed and
the case is remanded for further proceedings.

____________________________________
Carolyn B. McHugh,
Presiding Judge

‐‐‐‐‐

¶46 I CONCUR:

____________________________________
Stephen L. Roth, Judge

‐‐‐‐‐

DAVIS, Judge (dissenting):

¶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,
355 P.2d 806 (Wash. 1960), was 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.1

1
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.
(continued...)

20100077‐CA 21
See Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 581 (“[D]ue
process is not a technical conception with a fixed content unrelated to time, place, and
circumstances. Instead, due process is flexible and, being based on the concept of
fairness, should afford the procedural protections that the given situation demands.”
(citations and internal quotation marks omitted)).

¶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.

¶49 The State titled its request for an additional evidentiary hearing, “Motion For
Leave To Supplement Record,” and stated, “If the court permits the [S]tate 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 because it amounted to a request for a “re‐ruling” on the suppression issue.
During the August 2009 proceeding, the trial court seemingly agreed with Relyea that
there was not a clear procedure that allowed the State’s request and expressly declined
to treat the State’s motion as a motion to supplement. Instead, the trial court “grant[ed
the] motion” but “den[ied] the request to augment the record” and in turn permitted
the State to “do an offer of proof by putting on the evidence so [it could] preserve [its
challenge to Baker’s obsolescence].” The trial court expressly prohibited the State from

1
(...continued)
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.

20100077‐CA 22
“augment[ing] the record” with facts relevant to the motion to suppress after it had
already ruled to exclude the Intoxilyzer evidence. The State agreed with that
determination, noting that the purpose of the Offer of Proof Proceedings was not to
challenge “the district court’s June 2009 ruling of inadmissability based on Baker rule
noncompliance” but, “to challenge the utility of the Baker decision requiring an officer
to observe a suspect for 15 minutes before administering an intoxilyzer test,” and to
“help the [c]ourt understand the technical advancement and capabilities of the
Intoxilyzer 8000 as compared to the [B]reathalyzer that was used in 1958 in [Baker].”
Relyea also understood that this was the limited purpose of the Offer of Proof
Proceedings, explaining, “The trial court scheduled a hearing on the State’s motion after
the State made it clear that it was not presenting evidence for the purpose of
reconsidering the exclusion of [the Intoxilyzer] test results and would not be asking the
court to do so . . . .”

¶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[ed] 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 proceeded 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 evidence” 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. Millbank Ins. Co., 2007 UT 37, ¶ 16,
163 P.3d 615 (emphasis and internal quotation marks omitted). Relyea disagreed,
arguing that “because the supplemental evidence was still regarding the Baker issue and
the observation period,” and “because the [c]ourt did not overlook any facts . . . [or]
misconstrue any of the facts,” the State should not be permitted to augment the record.
This time, however, the trial court seemed to agree with the State’s characterization of

20100077‐CA 23
Relyea’s original motion to suppress as a motion in limine and “allow[ed] the State to
augment the record,” but maintained its original position that the Intoxilyzer evidence
failed to comply with Baker. The trial court also acknowledged that “probably nobody
saw this coming” and that “all of this should have been presented at the original [April
2009] hearing,” and again offered Relyea the opportunity to present additional evidence
on this matter. The trial court issued another Order in January 2010, in light of the Offer
of Proof Proceedings, in which it stated that the Baker compliance issue and the Baker
obsolescence issue were both before the court. The court listed facts in its findings that
were presented in the August 2009 proceeding, including new evidence that addressed
the Baker compliance issue. The trial court also stated in this order that the August 2009
proceeding was requested so that the State could “argue[] that compliance with the
Baker rule was not necessary.”

¶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
State maintained throughout the two proceedings that it was “trying to be transparent”
about its goal, which was “to overturn Baker.” Thus, the expectation the majority now
imposes on Relyea—that he should have put on more evidence pertaining to the Baker
compliance issue or challenged the State’s offerings on Baker compliance grounds
during the Offer of Proof Proceedings—is fundamentally unfair.2 See, e.g., supra ¶¶ 40‐
42. A party should not be expected to argue about apples in a proceeding about
oranges. The suppression hearing was not reopened, and we should not now impose
on Relyea the expectation that he should have treated the Offer of Proof Proceedings as
though they were actually continuations of the suppression hearing. See Pau v. Yosemite
Park & Curry Co., 928 F.2d 880, 890 (9th Cir. 1991) (explaining that an offer of proof
proceeding should be reviewed according to the contours the trial court established for
that proceeding).

¶53 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 [a]
prior hearing.” See supra ¶ 24. However, these were not proceedings to supplement the

2
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 ¶¶ 21‐22.

20100077‐CA 24
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, 2001 UT 30, ¶ 36, 25 P.3d 985, in order to “preserve the record for appellate
review,” Las Vegas Convention & Visitors Auth. v. Miller, 191 P.3d 1138, 1150‐51 (Nev.
2008). Evidence offered during such proceedings may or may not constitute evidence
supporting a finding of fact. Here, the parties and the trial court were quite clear about
the limited scope and purpose of the proceedings. Indeed, the manner in which the trial
court asked Relyea at the close of the August 2009 proceeding if he would like to
“present anything else,” even though the proceeding was “the State’s attempt to
augment the record,” indicated that the trial court did not expect Relyea to participate
in that manner. See supra ¶ 50. This shared understanding assured Relyea that the
Offer of Proof Proceedings would actually be limited in scope. Presumably these
repeated assurances caused Relyea to focus his participation in the proceedings
accordingly, i.e., to treat the proceedings as true offer of proof proceedings on Baker
obsolescence, rather than proceedings to supplement the record of Baker compliance,
and to focus on the propriety of the evidence proffered in light of the State’s restricted
purpose. Under the unique facts and circumstances of this case, I believe fundamental
notions of due process require us to constrain our analysis to the same narrow purpose
mutually understood by the parties and the trial court when they went forward with
the Offer of Proof Proceedings. Cf. Pau, 928 F.2d at 890. To do otherwise, as the
majority has done, is akin to permitting the State a second bite at the apple3 and

3
I acknowledge that the situation here does not amount to res judicata. See
generally Macris & Assocs., Inc. v. Neways, Inc., 2000 UT 93, ¶ 34, 16 P.3d 1214 (noting that
“there are two branches of res judicata, claim preclusion and issue preclusion—also
known as collateral estoppel”—and explaining that “claim preclusion applies to whole
claims, whether litigated or not, and prevents parties from relitigating the same claim in
a second suit,” while “issue preclusion, or collateral estoppel, arises from a different
cause of action and prevents parties or their privies from relitigating particular issues
that have been contested and resolved” (internal quotation marks omitted)); Salt Lake
City v. Silver Fork Pipeline Corp., 913 P.2d 731, 733 (Utah 1995) (“Claim preclusion
prevents parties or their privies from relitigating a claim for relief that was once
litigated on the merits and resulted in a final judgment between the same parties or
(continued...)

20100077‐CA 25
transforms the repeated assurances by the State and trial court that the proceedings
were limited in purpose and scope into a true “gotcha” scenario for Relyea on appeal,
see generally Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. Dist. Ct. App.
1979) (“[C]ourts will not allow the practice of the . . . ‘gotcha!’ school of litigation to
succeed.”).

¶54 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 scope 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.

¶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

3
(...continued)
their privies.” (emphasis and internal quotation marks omitted)).

20100077‐CA 26
not comply with the Baker requirements.4 If anything, this concession reinforces the
other assurances Relyea received that Baker compliance was a settled issue and that the
Offer of Proof Proceedings were intended to focus solely on preserving evidence as to
whether Baker ought to be overturned. This distinction further justified Relyea’s
decision not to object to the admission of the observation evidence or present his own
evidence during the Offer of Proof Proceedings.

¶56 Consequently, in light of the repeated assurances given to Relyea that the Offer
of Proof Proceedings were limited in scope 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 to 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.

____________________________________

4
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,
[Y]ou could go ahead and take a look at the evidence that we
provided to the [c]ourt 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.

20100077‐CA 27
James Z. Davis, Judge

20100077‐CA 28