People v. Boughner , 209 Mich. App. 397 ( 1995 )

Neff, J.

Defendant pleaded guilty of operating a motor vehicle while having an unlawful blood alcohol level (ubal), third offense, MCL 257.625(6) (d); MSA 9.2325(6)(d), and driving with a suspended license, MCL 257.904; MSA 9.2604, under the condition that he be allowed to bring the present appeal concerning the validity of his Breathalyzer test. Defendant appeals as of right and we vacate defendant’s ubal conviction only.

Defendant correctly states the law in Michigan regarding the procedures for administering Breathalyzer tests. The purpose of the administrative rules with respect to administering Breathalyzer tests is to ensure the accuracy of those tests. People v Tipolt, 198 Mich App 44, 46; 497 NW2d 198 (1993). Failure to meet the foundational requirements will preclude the use of the test results. Id. When the rules regarding Breathalyzer tests have not been complied with, the accuracy of those tests is considered sufficiently questionable so as to preclude the test results from being admitted into evidence. Id. The mere fact that this evidence is precluded, however, does not require the dismissal of defendant’s case. People v Willis, 180 Mich App 31, 37-38; 446 NW2d 562 (1989). Unless the ordinance under which defendant is charged requires defendant’s blood alcohol content to be established, the prosecution against defendant may continue without the Breathalyzer evidence. Id. at 38.

The administrative rule in question in this case requires that the defendant be observed by the operator for fifteen minutes before the Breathalyzer test is administered, in order to prevent the defendant from smoking, regurgitating, or placing anything in the defendant’s mouth, except for the mouthpiece used in the test. 1992 AACS, R 325.2655(1)(e).

Defendant was videotaped for approximately thirty-five minutes before the test was administered. We have reviewed the videotape, and find that the operator of the test arrived at the police station where defendant was being held no more than eight minutes before the test was administered. The videotape also demonstrates that the operator did not continuously observe defendant for those eight minutes.

Further, although the video camera was aimed at defendant’s location for the thirty-five minutes before the test, the view of defendant was often briefly obstructed as people moved across the room and in front of the video camera. Additionally, at 3:35 a.m., approximately five minutes before the first test, the view of defendant was obstructed for approximately three to five seconds when an officer stood at a desk next to defendant. We are unable to determine what defendant was doing during that time period.

Further, throughout the thirty-five minutes before the test was administered, defendant’s hand was either on his face, or in or on his mouth. Although it appears that defendant put his fingers in his mouth, it is impossible to tell from the videotape whether defendant placed something else in his mouth at these times.

As a result of the questions arising from a review of the videotape, we conclude that the administrative rule in question was not complied with, and that defendant’s ubal conviction must be vacated.

Defendant’s ubal conviction is vacated and this case is remanded to the circuit court for further proceedings. We do not retain jurisdiction.

MacKenzie, P.J., concurred.