Twenty Minute Observation Period
If you were arrested for DUI and took the breath test, the attorney you hire should use innovative techniques to fight the DUI case. One of the best ways to fight a DUI breath test case is to gather evidence about what occurred during the twenty-minute observation period before the breath test. In some jurisdictions, video equipment is set up in the breath testing room.
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The video is the best evidence of whether the arresting officer watched the defendant for the entire 20 minute period before the breath test. If not, the breath test results could be thrown out by the judge.
Update: The Hillsborough County Sheriff’s Office moved the central breath testing facility in November of 2011 and failed to install cameras in the new breath testing facility. Although any video of the 20-minute observation is sometimes available in other jurisdictions.
If an officer brings to the Intoxilyzer 8000 machine to the scene, then portions of the twenty-minute observation period are often preserved on the roadside investigation video.
The 20 minute observation period is often called the “Wait or Deprivation” period. The purpose of the observation period is to provide a reliable way to minimize the chance that a contaminant will artificially inflate the breath test reading.
Those contaminations can occur because of regurgitation of stomach contents, vomitus, burping or consumption of unknown substances.
Require “Close and Continous” Observation of the Test Subject
The criminal defense attorney should point out the importance of close and continuous observation of the test subject.
Without the close and continuous observation of the defendant, the sources of contamination might falsely elevate the reported BrAC results or artificially raise a reported amount of alcohol well beyond the per se limit.
For this reason, the best practices for testing protocols require that the Wait, Observation or Deprivation period is closely and continuously observed.
If the period is not conducted properly, then the results obtained, regardless of any .02 agreement, are inherently unreliable, and should be disregarded by the court.
The officer should be asked about what he did during the 20 minute period before the breath test. If the officer was in the room, but spent the time attending to paperwork or setting up the breath testing machine without monitoring the defendant, then the best practices were not followed.
The ideal time to ask the officer these questions is at the formal review hearing which is conducted within 42 days of the arrest.
In many of these cases, we’ve seen officers on video doing paperwork, talking on their cell phone, or chatting with other officers. Sometimes you can see the officer walking into or out of the room.
If the breath test operator is engaged in other activities and doesn’t monitor the defendant carefully, then the results are not accurate or reliable.
If the officer would not notice that the subject had a polite, quiet, or undetected little burp or micro-burp, then the contaminates in the oral pathway might cause an artificially inflated reading.
These undetected sources of contamination need to be identified so that the 20 minute observation period can be restarted. For this reason, the officer should engage in close and continuous observation of the test subject.
Why is the 20 minute observation period before the DUI breath test required under Florida Law?
Florida’s Administrative Rule 11D-8.007 requires that before the breath test is administered, the arresting officer (or another person designated for this job “shall reasonably ensure” that the person getting ready to take the breath test has “not taken anything by mouth or has not regurgitated for at least 20 minutes before administering the test.”
Although continuous face to face observation is not required to comply with Rule 11D-8.007, Kaiser v. State, 609 So. 2d 768 (Fla. 2d DCA 1992), the rule requires the officer to be in a position to see and hear the person being observed for the entire period.
Florida Administrative Code 11D-8.007(3) provides:
The breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least 20 minutes before administering the test.
This provision shall not be construed to otherwise require an additional 20-minute observation period before the administering of a subsequent sample.
If your breath test took place at a facility with video equipment, then your attorney can order the videotape showing everything that happened from the moment you entered the room until the moment you exited the room, including the entire 20 minute observation period and during the time that you are blowing into one of the breath test machines, the Intoxilyzer 8000.
In many of these cases, the videotapes shows that neither the arresting officer nor the breath technician properly observed the Defendant for a period of 20 minutes prior to the administration of the breath test to make certain that the Defendant did not burp, belch, or regurgitate the contents of his stomach into his mouth so as to ensure an accurate breath test reading.
Certain medical conditions, such as acid reflux or GERD can also affect the arresting officer’s efforts to “reasonably ensure” that regurgitation did not occur, especially when the officer was aware the person suffered from that medical condition but did not closely watch the person during the 20 minute observation period.
What if the officer was not watching me during the 20 minute period?
If the 20 minute observation period was not properly followed, then the Defendant can file a motion to suppress or exclude the test results by arguing that he was involuntarily coerced into submitting without the benefit of a search warrant, in violation of Fla. Stat. § 316.1932(1)(a) and (1)(b)2.
Those provisions state that analysis of the driver’s breath must have been performed in “substantial accordance” with the methods approved by the FDLE.
The burden is then passed to the prosecutor and the State of Florida to show substantial compliance with those requirements. Other attacks can be based on the Fourth and Fourteenth Amendments to the United States Constitution, Article I, Section 12 of the Florida Constitution, and the Defendant’s right to due process of law under Article I, Section 9 of the Florida Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.
Finding an Attorney for a DUI Breath Case in Florida
The 20 – minute observation in Rule 11D – 8.007(3) provides for “… reasonably ensure . . . for at least 20 minutes . . .” The prosecutor with the State Attorney’s Office has the burden of proving substantial compliance with this regulation. Dept. of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).
The breath test operator need not observe the defendant face-to-face continuously for 20 minutes to make certain that the defendant did not ingest anything or regurgitate. Kaiser v. State, 609 So.2d 768 (Fla. 2d DCA 1992).
But if the evidence shows that the defendant is observed for only 17 minutes and the state fails to produce any evidence in regard to the three – minute period, then merely alleging noncompliance is insufficient. Dept. of Highway Safety and Motor Vehicles v. Farley, 633 So. 2d 69 (Fla. 5th DCA 1994).
Contact a Tampa DUI Attorney at the Sammis Law Firm to discuss your case if you believe that the officer did not properly administer the breath test because he did not observe you during the 20 minute period before you took the test.
Our main office is located in downtown Tampa in Hillsborough County, FL. We also have a second office in New Port Richey in Pasco County. We fight DUI cases throughout the greater Tampa Bay area including Hillsborough County, Pasco County, Hernando County, Pinellas County, and Polk County, FL.
Call 813-250-0500 today.
This article was last updated on Thursday, December 18, 2019.