Background
When Brandon Barbour was pulled over in American Fork in May 2023, officers smelled alcohol on his breath and eventually transported him to a neighboring city’s police station after the local Intoxilyzer was malfunctioning. Before administering the breath test, a deputy observed Barbour for the fifteen-minute “Baker period” — the observation window, named after a 1960 Washington Supreme Court case adopted in Utah, during which an officer must confirm that nothing enters the subject’s mouth. The test returned a BAC of .11.
What the officer failed to account for was what the bodycam footage plainly showed: Barbour biting his fingernails “more or less continuously, for more than two minutes” during that observation period, stopping only within the last minute before the test. At a pretrial hearing, Barbour’s trial counsel stated he anticipated filing a motion to suppress, but never did. At trial, the prosecution’s theory rested almost entirely on the breath test result. Barbour was convicted of DUI, driving on a suspended license, and improper lane travel. He appealed, arguing his counsel was constitutionally ineffective.
The Court’s Holding
Reversed and remanded for a new trial. Writing for a unanimous panel, Judge Mortensen held that trial counsel’s failure to move to suppress the breath test constituted ineffective assistance of counsel under the two-part Strickland standard.
On the deficiency prong, the court applied Utah’s Baker rule, which requires the prosecution to show that “a police officer observed the defendant during the fifteen minutes immediately preceding the test to ensure that the defendant introduced nothing into his or her mouth during that time.” Vialpando, 2004 UT App 95, ¶ 14 (emphasis added). Barbour’s fingernails were something — not “nothing” — and their sustained introduction into his mouth for over two minutes required the officer to restart the observation clock. The court described the footage as “no mere nibble, but rather prolonged gnawing.” Failing to bring a suppression motion that had no downside risk — the worst outcome was conviction, which happened anyway — was objectively unreasonable.
On the prejudice prong, the court applied State v. Harvey, 2019 UT App 108, and found the remaining non-BAC evidence insufficient to sustain a conviction under Utah Code § 41-6a-502(1)(b), the “incapable of safely operating a vehicle” prong. Without the breath test, the prosecution could not invoke subsections (a) or (c) of the DUI statute, which require proof of a BAC at or above .05. The subsection (b) evidence — brief lane crossing, admissions to drinking, and FST clues — fell well short of the affirmative evidence of incapacity present in cases where courts have affirmed subsection (b) convictions (such as erratic driving, slurred speech, or inability to control actions during the stop). The court also noted that Barbour’s need to use the restroom may have affected his FST performance, a factor the prosecution never addressed.
Key Takeaways
- Placing fingernails into the mouth during Utah’s Baker 15-minute breath test observation period constitutes introduction of a foreign object and requires the administering officer to restart the observation clock; failure to do so violates the foundational requirements for admission of Intoxilyzer results.
- Trial counsel who fails to bring a motion to suppress a breath test when the Baker period was violated — and when the breath test was the prosecution’s primary theory of liability — performs deficiently under Strickland, particularly when the suppression motion carried zero downside risk.
- To convict under Utah Code § 41-6a-502(1)(b) (incapable of safely driving) without a BAC reading, prosecutors need substantially more than a brief lane deviation, admissions to drinking, and unspecified FST clues; the evidence must affirmatively establish incapacity to operate a vehicle safely.
- DUI defense practitioners should review bodycam footage of the Baker period as a routine step; any sustained oral contact — including nail-biting — is now a viable basis for a suppression motion.
- The court noted this is a question of first impression in Utah; no prior Utah case had addressed whether nail-biting triggers the Baker clock-restart requirement.
Why It Matters
American Fork City v. Barbour fills a significant gap in Utah DUI law. Before this decision, there was no Utah authority addressing whether habitual behaviors like nail-biting during the Baker observation period required a clock restart. The court has now answered that question squarely: any introduction of “something” into the mouth — however ordinary the behavior — defeats Baker compliance if not addressed by the observing officer. Criminal defense lawyers handling DUI cases in Utah should treat bodycam review of the Baker period as a mandatory step in case evaluation, looking beyond obvious Baker violations like gum-chewing or vomiting to subtler behaviors the defendant may not even remember.
For prosecutors and law enforcement, the practical lesson is equally clear. Officers conducting Baker observations must actively watch for and respond to any oral contact, including hand-to-mouth behaviors. If such contact occurs and the officer does not restart the clock, the resulting breath test is vulnerable to suppression. The case also reinforces the importance of thorough knowledge of Utah’s subsection (b) DUI case law for trials where BAC evidence is unavailable: the bar for proving incapacity without a chemical test is meaningfully higher than many practitioners may assume.