Metropolitan News-Enterprise


Monday, February 3, 2003


Page 3


C.A. Rules Officers Not Required to Keep Eyes on Suspect for Breath Test


By a MetNews Staff Writer


A motorist suspected of driving while intoxicated need not be kept under constant eye-to-eye watch for 15 minutes prior to taking a breath test to satisfy a state regulation governing license revocation, the Fourth District Court of Appeal ruled Friday.

The purpose of the rule is to make sure the driver does not ingest anything before the test to interfere with the results, Justice Terry B. O’Rourke of Div. One said, so it was enough for a California Highway Patrol officer to keep a suspected drunk driver in his patrol car for the requisite quarter-hour.

The ruling reverses the San Diego Superior Court, which accepted driver Jaime Cordova Manriquez’s argument that the 15-minute rule was violated in his case because the officer seated him in the patrol car’s back seat, where he could not easily be seen.

Regulation 1219.3 of 17 Cal. Code Regs. provides that a breath sample “shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked.”

When CHP Officer Timothy Fenton stopped Manriquez on Interstate 5 just after midnight on Aug. 18, 2001, he administered field sobriety tests, concluded he was driving under the influence and arrested him.

At about 12:19 a.m., Fenton put Manriquez in the back of his patrol car, then called a tow truck and waited for it to arrive. While waiting, he sat in the front seat, doing paperwork and talking to Manriquez.

After the two truck arrived and took Manriquez’s car, Fenton drove Manriquez to San Diego County jail and at 12:51 a.m. administered another breath test.

At an administrative license suspension hearing Manriquez introduced the testimony of a former sheriff’s deputy who testified that it was impossible for an officer at the wheel to continuously observe someone on his back seat for purposes of the 15-minute rule. The hearing judge was unconvinced and the license remained suspended, but a San Diego Superior Court judge granted Manriquez’s petition for writ of administrative mandate.

The judge found it was impossible for Fenton to have continuously observed Manriquez in compliance with the regulation.

But O’Rourke said the judge incorrectly interpreted the regulation’s requirement, which includes the mention of the subject’s not having had anything to eat, drink or smoke, and not having vomited or, in essence, burped, before taking the test.

The regulation should be interpreted with reference to its purpose, which is to assure there would be no physical symptoms that would affect the test results, the justice said.

“In the circumstances of Manriquez’s transport to the county jail, the fact the officer did not focus his eyes on Manriquez 100 percent of the time did not rebut the presumption that he properly performed the breath test in compliance with this regulation,” O’Rourke said. “[T]he use of all of the officer’s senses enabled him to assure compliance with the continuous observation requirement.”

The case is Manriquez v. Gourley, D039757.


Copyright 2003, Metropolitan News Company