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.
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 judge could throw out the breath test results.
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. However, video of the 20-minute observation is sometimes available in other jurisdictions.
If an officer brings the Intoxilyzer 8000 machine to the scene, 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 emphasize 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, 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 within 42 days of the arrest.
Over the years, we’ve seen officers on video doing paperwork, talking on their cell phones, or chatting with other officers. Sometimes, you can see the officer walking into or out of the room. If the arresting officer and breath test operator are engaged in other activities and don’t monitor the defendant carefully, then the results are not accurate or reliable.
If the officer did 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.
Consequence of Violating the 20 minute Observation 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.
First, the Court must consider Florida Statutes § 316.1932 (1)(b)(2), which states, in part:
“An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. . . . Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.”
Next, the Court considers Florida Administrative Code 11D-8.007(3), which states that “[t]he 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 twenty (20) minutes before administering the test. . . .”
An officer does not have to “stare fixedly” nor have “continuous face to face observation” with a defendant for twenty minutes in order to show substantial compliance with the observation rule and “[m]inor deviations in compliance will not render the test results invalid.” Kaiser v. State, 609 So. 2d 768, 770 (Fla. 2d DCA 1992). See also State v. Donaldson, 579 So. 2d 728 (Fla. 1991).
Although continuous face-to-face observation is not required to comply with Rule 11D-8.007, the rule requires the officer to be in a position to see and hear the person being observed for the entire period.
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 video 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, dentures, 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.
When Kaiser was decided, the Department of Health and Rehabilitative Services (HRS) was responsible for the test procedures. The main testing procedures were found in Florida Administrative Code Rule 10D-42.24(1)(f) which required “[t]he technician, arresting officer, or person administering the collection of the breath sample must make certain the subject has not taken anything by mouth or has not regurgitated for at least twenty minutes before administering the test.”
The current rules effectively relaxed the “standard of observation while continuing to recognize the obligation to protect the suspect from inaccurate readings from the Intoxilyzer instrument.” State v. Orlando Cala, 7 Fla. L. Weekly Supp. 342a (Fla. 11th Jud. Cir., Miami-Dade County Ct., March 6, 2000); see also State v. Alain, 27 Fla. L. Weekly Supp. 388a (Fla. 7th Jud. Cir., Volusia County Ct., May 15, 2019).
After the court determines substantial compliance, the breath test is admissible, “. . . whether the technician was able to make sure that [the accused] did not regurgitate or ingest anything goes to the weight of the evidence” and is a “. . . recognition that the jury may consider the weight to be given to the test if the defense challenges its reliability.” Kaiser at 770.
In Chiaravalle v. State, 2023 WL 6612975 (Fla. 4th DCA 2023), an officer was in the “immediate area” and “within earshot” throughout the entire observation period.
Other cases favorable to the defense include:
- State v. Kozlak, 22 Fla. L. Weekly Supp. 607b (Fla. 7th Jud. Cir., Volusia County Ct., June 24, 2013);
- State v. Verdin, 22 Fla. L. Weekly Supp. 371a (Fla. 7th Jud. Cir., Volusia County Ct., July 29, 2014);
- State v. Chaya, 29 Fla. L. Weekly Supp. 134a (Fla. 7th Jud. Cir., Flagler County Ct., Oct. 28, 2019); and
- State v. Miller, 19 Fla. L. Weekly Supp. 593a (Fla. 12th Jud. Cir., Sarasota County Ct., Sept. 12, 2010)
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 regarding 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 Friday, February 16, 2024.
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