DUI Breath Test: 15-Minute Observation Period Required

Law Offices of EJ Stopyro
Orange County DUILawyer
DUI Attorneys in Orange County

So, you’re driving home from after having a couple drinks with friends when you see the cop behind you activate his emergency lights. He pulls you over, asks for your license, asks how much you’ve had to drink tonight, and the next thing you know you are doing field sobriety tests at the side of the road.

You’re sure you’ve passed all the field sobriety tests but the cop arrests you for drunk driving anyway. He gives you the option of breath or blood and you choose breath. The cop either produces a small breath-testing device at the roadside or drives you to the station. Finally, you blow two times. Unfortunately, the results exceed the legal limit of 0.08%. You’re busted, right? Not so fast.

Title 17, California Code of Regulations is a body of law that mandates how a breath test MUST be conducted for the results to be valid. That law says “the breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample.” The reason for this observation period is to make sure that the person being tested doesn’t belch or burp. A burp, even a small one, may transport microscopic amounts of alcohol from your stomach to your mouth. This mouth alcohol, although tiny, is more than enough to produce a false reading on the breath test.

But most cops count the time they spend driving you to the police station or jail as part of the fifteen minute observation period. If you perform the breath test at the side of the road, they count the time you were doing field sobriety tests as part of the fifteen minute observation period. Yet during this time the cop is usually filling out the report regarding the field sobriety tests and isn’t really paying any attention to whether you burp or belch. As a precaution, the cop is also required to ask you before you take the breath test whether you have burped or belched in the last fifteen minutes. But can you really be expected to KNOW whether you’ve belched within the past fifteen minutes?

Because trace amounts of alcohol can easily compromise a breath test, a proper observation period is essential for an accurate test. Since it’s up to a jury to decide whether the cop performed the observation period properly, it’s important for your Orange County DUI lawyer to educate the jury on the importance of the observation period and expose the police officer’s lack of attention during the observation period. If it’s reasonably possible that you belched, however subtly, during the fifteen minutes before a breath test, then there is reasonable doubt as to the results of that test and you may be entitled to a NOT GUILTY verdict.

For more information on DUI defense call the Law Offices of EJ Stopyro at (949) 559-5500 for a free and confidential consultation or go to our website at www.EJEsquire.com.

Law Offices of EJ Stopyro

Orange County DUILawyer
DUI Attorneys in Orange County