PEOPLE OF MI V ANTHONY MICHAEL WEST
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 26, 1999
Plaintiff-Appellant,
v
No. 207894
Ottawa Circuit Court
LC No. 97-020722 AR
ANTHONY MICHAEL WEST,
Defendant-Appellee.
Before: O’Connell, P.J., and Jansen and Collins, JJ.
PER CURIAM.
Plaintiff appeals by leave granted the circuit court’s order affirming the decision of the district
court and granting defendant’s motion to suppress Breathalyzer test results. We reverse and remand for
further proceedings. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Defendant was arrested for operating a motor vehicle under the influence of alcohol/unlawful
blood alcohol content, MCL 257.625(1); MSA 9.2325(1). Defendant was told that he had one hour in
which to contact an attorney and decide whether he would take a Breathalyzer test. While defendant
made telephone calls, Officer Wright, the arresting officer/test administrator, worked on paperwork and
observed him from a distance of twenty to thirty feet. When Wright finished his paperwork he began a
fifteen minute observation of defendant. Such an observation period is required before a Breathalyzer
test can be performed, and is designed to ensure that the suspect does not place anything into his mouth
or engage in any action, such as regurgitation, that could affect the accuracy of the test results. 1994
AACS, R 325.2655(1)(e) (Rule 5(1)(e)). At the end of the period, Wright and defendant proceeded
to the testing room. Wright turned his back on defendant for a few seconds to retrieve defendant’s
driver’s license. The Breathalyzer tests given to defendant produced results of .16 BAC and .15 BAC.
Defendant moved to suppress the results, arguing that Wright had not observed him for fifteen
continuous minutes as required by Rule 5(1)(e). Defendant acknowledged that he did not put anything
into his mouth prior to taking the tests, and that he was not claiming that the results were inaccurate due
to any action on his part. The district court granted the motion, finding that Wright’s observation of
defendant from a vantage point some twenty to thirty feet away was not sufficient, and that the
observation had not been continuous for fifteen minutes. The circuit court affirmed the district court’s
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decision, determining that strict compliance with Rule 5(1)(e) was required. We review a trial court’s
findings of fact regarding a motion to suppress for clear error, and the ultimate decision de novo.
People v Darwich, 226 Mich App 635, 637; 575 NW2d 44 (1997).
In order for the results of a chemical test of blood to be admitted into evidence, four
foundational requirements must be met: (1) it must be shown that the operator was qualified; (2) it must
be shown that the proper procedure or method was used when the test was administered; (3) it must be
shown that the test was performed within a reasonable time after the arrest; and (4) it must be shown
that the testing device was reliable. People v Schwab, 173 Mich App 101, 103; 433 NW2d 824
(1988).
Plaintiff argues that the circuit court erred by affirming the district court’s decision granting
defendant’s motion to suppress the Breathalyzer test results. We agree and reverse. In People v
Wujkowski, 230 Mich App 181; 583 NW2d 257 (1998), we held that a violation of Rule 5(1)(e) does
not automatically require suppression of Breathalyzer test results. A violation of the rule that does not
affect the accuracy of the test does not warrant suppression of the test results. Wujkowski, supra at
187. Here, Wright observed defendant from a distance of twenty to thirty feet for most of the fifteen
minute period. Rule 5(1)(e) does not specify at what distance the observer must be from the suspect.
The record does not indicate that Wright could not observe defendant from this vantage point. As
Wright and defendant proceeded to the testing room, Wright’s observation was interrupted for several
seconds while he retrieved defendant’s driver’s license. Defendant acknowledged that he did not put
anything into his mouth during the time Wright’s observation was interrupted. Nothing on the record
indicates that defendant did anything during the fifteen-minute period, including the brief period in which
Wright’s attention was diverted, that would c into question the accuracy of the Breathalyzer test
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results. The hypertechnical violation of Rule 5(1)(e) was harmless error and did not require suppression
of the test results in this case. Wujkowski, supra at 188.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Peter D. O’Connell
/s/ Kathleen Jansen
/s/ Jeffrey G. Collins
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