Motions filed in Draper Justice Court on behalf of former Lt. Fred Swain also state that portable breath-testing machines are fraught with problems.

Benjamin Hamilton, lawyer for Swain, is asking a judge to suppress results of a stimulus and breath test and to dismiss his class B misdemeanor charge of driving under the influence of alcohol.

Swain claims the Draper police officer who administered the breath test failed to check Swain's mouth for foreign matter and did not observe Swain for 15 minutes prior to the test.

Also, the machine used to test Swain's breath was not approved by the Utah Department of Public Safety, as required by law, according to one of Swain's motions. The machine was not subject to calibration and maintenance required by the department, Swain says.

"There are so many potential problems with machines of this type, that the department . . . has deemed that only machines certified by the department can be used for evidentiary purposes," states Swain's motion.

Another motion asks the court to preclude testimony of an eye stimulus test given to Swain. The ex-trooper claims the officer did not follow proper procedure during the test, in which the officer observes the subject's eyes as it looks at an object, but does not specify what the officer might have done wrong.

Hamilton, said Tuesday the motions draw from testimony given by Draper police officer Kevin Easter during a hearing to determine whether Swain retained his driver's license. Hamilton declined to elaborate on Easter's testimony. Swain retained his license.

"It's our contention there was various violations [in administering the test]," Hamilton said. "It's the city's burden to show there were not."

Swain was the commander of the UHP DUI unit. About 2:25 a.m. on June 23, Swain crashed his UHP patrol car into a concrete barrier on Bangerter Highway near 400 West.

In a written report, Easter stated Swain was "acting strange" and wouldn't stand near officers or troopers as they questioned him. Easter detected an odor of alcohol on Swain, who was "very impaired" as he filled out a statement, according to Easter's report.

Swain eventually submitted to sobriety tests. Draper police said a breath test placed Swain's blood-alcohol level at 0.12 percent. Utah's legal limit is 0.08 percent.

Swain's DUI charge carries a possible penalty of six months in jail. The Draper city prosecutor has said the standard punishment for first-time DUI offenders is two days in jail and a $1,400 fine.

Swain, who has pleaded not guilty, resigned from UHP a week after the crash. In his resignation letter, he admitted to having a drinking problem for more than two years.

Asked why Swain is fighting the allegations, Hamilton replied, " 'Cause he's not guilty."

ncarlisle@sltrib.com