Tulsa criminal defense attorney | Breath Test Rules | Cale Law Office
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The defendant was charged with driving under the influence of alcohol. He sought to get the breath test kicked out. The judge granted his request. The state appealed. The court granted the motion to suppress his breath test because it found that the board of test for alcohol and drug influence rules and regulations were not correctly promulgated. The state argued that the rules were valid.
Before meaning the results of the press test or blood test for DUI case, the state must show that the collection and analysis apply complied with rules adopted by the board. The legislature created the board to create rules and regulations concerning the maintenance and operation of breathalyzer equipment. No test run on the equipment is valid unless the testing procedures complied with the rules. A previous Oklahoma Court of Criminal Appeals case discussed breathalyzer equipment issues. It held that the state’s burden may be satisfied by testimony show compliance with the regulations. The statute allows for DUI prosecutions it requires compliance with the boards existing rules.
It’s clear that law enforcement must rely on a comply with existing board rules and regulations to successfully use test results in prosecuting cases alleging driving under the influence. However, neither the state statutes nor previous case law requires the state to show that the board regulations were correctly promulgated for a test is immiscible in a criminal prosecution. The defendant argued that the rulemaking process to not allow the board to set out policies parole resolution. The premise that in his opinion is no way binding on this court. However, he argues that this course considered in determining whether the rules were correctly adopted.
The administrative rules are not concerned with criminal law, said Tulsa criminal defense attorney Stephen Cale. Instead, they are concerned with agency rulemaking the administrative procedures act states the rules pursuant to its provisions are pursuant to be valid until declared otherwise by the District Court. In criminal cases, the trial court must decide whether prosecutors and law enforcement complied with existing board rules and regulations. Considering the admissibility of blood test evidence, the Oklahoma court criminal’s pills found that a board written policy statement or interpretation that is inconsistent with board rules could be used to determine whether the board rules were followed.
Defendant argued that the trial court made a mistake in admitting considering the maintenance long as breath testing devices proof of proper maintenance. A police officer arrested the defendant for actual physical control of a motor vehicle. The defendant submitted to a breath test. He saw a review the order revocation on his driver’s license. Administrative hearing, the officer held that the driver’s license should remain revoked. The defendant filed his petition for review at the trial court. At the hearing on the merits, the only arresting officer testify. On direct examination, the officer testified concerning the facts and circumstances surrounding the arrest. He also talked about administration of the breath test to the defendant. On cross-examination, the arresting officer testified that the device used to analyze the defendant’s principal was an older model, not the near one. He said that he was not trained to administer test on the enhanced model.
State adduced evidence of the maintenance law to demonstrate that the breath test was valid. The defendant objected to the admission of an assault without the testimony cross-examination of the maintenance supervisor demonstrating the actual performance of all maintenance by authorized person. The trial court admitted the law to show that the log was kept not to show the accuracy. Tulsa criminal defense attorney Stephen Cale will work hard to your case dismissed.
The trial court’s decision to admit evidence of the one the hearsay exceptions will not be disturbed without an abuse of discretion. On appeal driver’s license cases, the appellate court will not reverse the trial court’s judgment there is any evidence original inferences to draw from it. Must tend to support the court’s findings. On review, the trial court’s order granting a motion to vacate this will not be bothered unless affected by an abuse of discretion.
The state and federal court recognized that a breathalyzer maintenance record constitutes immiscible evidence to properly maintain device. However, must be kept is required by law. The record is a public record exception to the hearsay. The circumstances, the appellate court held that a breathalyzer maintenance law is immiscible under the public records exception to the hearsay rule. Additionally, because a public record carries with it the imprimatur of compliance, the log is immiscible is prima facie evidence of compliance with the rules and regulations. Even without the testimony of the maintenance supervisor, there is no evidence suggesting anything other than a probably minister breath test.
Federal rules of evidence applied in this case. The formants a wet test and then recording test results is clearly within the business of the police department. The justification for the police records and reports exception is the assumption that a public official performance to a properly. It is further assumed that the unlikelihood that he will remember details independently of the record. Further justification lies in the reliability factors within the records of readily conducted activities generally. Supervisors who perform the test have no personal stake in the outcome of individual cases. Additionally, nothing in the record revealed a motivation to misrepresent the test results were records.
There are number of exceptions to the hearsay rule. For example, a statement describing or explaining an event or condition made while the person making it was preceding the event is admissible. This is called the excited utterance rule. Also immiscible is the declarant’s then existing state of mind, emotion, sensation or physical condition. The sick can include intent, plan, motive, design, mental filling, pain and bodily health.