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 videotape will be the best evidence of whether the arresting officer watched you for the entire 20 minute period before you took the breath test. If not, the breath test results could be thrown out by the judge making a dismissal of your DUI charges more likely.
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. Video of the 20-minute observation is often available in other jurisdictions including at the Hernando County Sheriff's Office.
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 which 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
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.
At the Sammis Law Firm, our criminal defense attorneys look for innovative ways to fight the DUI Breath Test case.
Call 813-250-0500 today.
This article was last updated on Tuesday, January 2, 2018.