Facts: At 2:32am an officer observed MPS (who was known to him) accelerate from a stop sign “in a manner that appeared to [the officer] that the vehicle was trying to exceed the speed limit over a short distance”, the driver then slowed down when he “saw” the officer. The office stopped the vehicle, which had 5 people in it, as he thought the driver had a class 7 driver’s license restricting the number of passengers. The officer was wrong as the driver now had his class 5. Nevertheless the officer noted an open 12-pack of Twisted Tea (alcoholic beverage) in the back of the vehicle. One of the female passengers was drinking a Twisted Tea in the back seat. The driver was noted to have “red and glassy eyes”, “his face had lost muscle tone and would droop”, he was “increasingly methodical in his movements and speech” and had the “the smell of liquor on his breath”. The driver admitted to having consumed only “one beer three hours prior”. The officer, recognizing the driver from past dealings, demanded breath samples from him. The first sample registered a “FAIL” on the ASD at 2:42am. The driver protested as he then admitted that he had only consumed two beverages in total (one beer and one Twisted Tea). The driver pushed for a second test. A second test was performed on an ASD and again a second “FAIL” resulted. The driver was issued an IRP and the vehicle was towed. At the IRP appeal hearing the driver and the four passengers all provided written accounts/statements indicating that the officer used the EXACT SAME APPRIVE SCREENING DEVICE (ASD) for each ASD test and did not perform the two separate breath tests on TWO DIFFERENT ASDs as is required by law. The officer indicated in his sworn statement that he used two different ASDs but had the same serial numbers indicated for each device. He had, however, crossed out the serial number of one of the devices in his report and had replaced it with a different second serial number. It was alleged at the IRP oral appeal hearing that the officer falsified his report and changed the serial numbers on his report when he recognized his mistake. Decision: “Having reviewed the evidence before me, I find the officer did not provide you with two different ASD tests on TWO different ASDs”. Driving prohibition revoked, no fine imposed, all towing and impound were fees paid by the SMV. (October 2014)
