A situation has arisen where I am going to have to fight a motion to suppress on a breath test because the trooper took the mouthpiece out of the wrapper and blew into it to clear any remaining cellophane from the mouthpiece. Before I had an opportunity to address this with the trooper, it happened again and of course, both times on video. The trooper did not place his lips on the mouthpiece but had them 3-6 inches away. Any thoughts other than having the technical supervisor testify that while that is not a sanitary situation, it should not affect the outcome of the test then argue to the judge that issue goes to the weight and not the admissibility of the test?

Please e-mail me the duty station for this trooper. I'm sure that TLE will want to remind its troopers not to blow into the mouthpieces to clear the wrapping even if it doesn't violate the breath testing rules. If you don't want to include the name, that's fine; the duty station will do because I will let me know who the Sergeant is.

Thanks
Janette Ansolabehere
Senior Assistant General Counsel
Texas Department of Public Safety

Thanks for the response. I would be happy to email you, what is that address? The station is currently without a sergeant. I am trying to get in touch with the trooper to correct the situation. You mention that the blowing doesn't violate the breath test rules. Is there a way to get a acopy of those? That is one of the contentions of the defense atty, that it violates the D.P.S. rules but neither one of us has a copy and I would like to prove him wrong prior to the hearing if possible.
Thanks,
Mike Hartman
Scurry County Attorney
scurryca@nwol.com

Everything, and I do mean everything, is now available on the Internet. For the rules you seek, go to:

Breath Test Regulation. In particular, take a look at section 19.3 of Title 37 of the Administrative Code.

John,once again, thanks.
I had already looked at the Texas Admin. Code and could not find the information that I was told(by a defense lawyer) was there, so I thought maybe DPS put out their own manual or guidelines that addresses the issue and I did not want to be blindsided at the hearing with somthing I had not found. Do you know if any such documentation exists? I still have not found anything directly on this point.
Mike Hartman

I would think that if it isn't in the regulations, then it isn't required. The predicate for the admission of a breath test arises from the reference in statute to the administrative regulations.

For example, once upon a time, there was a 15 minute eye contact with the defendant required for admission of a breath test. That was amended to delete the eye contact requirement. So, the predicate no longer required it.

You can't write a rule to negate every silly thing that might happen in connection with collection of evidence. It goes to the weight, not the admissibility.

I suppose if some hired gun expert testified that the Trooper's blowing into the mouthpiece prevented an accurate reading then the judge could keep out the result on the basis of a faulty predicate for expert evidence. But that would be some really unbelievable testimony.

A motion to suppress is not the proper vehicle for the defendant's assault on the breath test sample, and you should resist some big pretrial hearing on that ground. A motion to suppress is supposed to address the legality of the search or seizure that led to the collection of the evidence. The defendant is not attacking his arrest, which led to the collection of the sample. He is only attacking the predicate for the admission of a particular item of evidence.

That hearing should take place during trial, preferrably at the point you offer the result into evidence.

That confirms my original thought that it goes to the weight, not admissibility. I have never tried to dispose of a motion to suppress by arguing against its application in a particular circumstance. Do you have any advice on how to get the judge to make that finding prior to puting on all the evidence that necessarily goes with a suppression hearing? Based on prior dealings with this atty. I assume his motion is going to be very broadly drafted.