For a Prosecutor to be able to admit a high breath test in a DUI prosecution, there are multiple hurdles that must be overcome. One of those is referred to as the “20 Minute Observation Period”. This is a portion of the Florida Administrative Code that mandates that the officer who is running the breath test equipment on a person, must reasonable ensure that nothing is taken by mouth or no regurgitation has occurred for at least 20 minutes before giving the breath test. Fl. Admin. Code Ch. 115-8.007(3).
The purpose of this rule is to make sure the person takes nothing by mouth, and make sure that the person has not “burped – up” alcohol from his or her stomach. If a person does “burp – up” contents (i.e. alcohol already consumed), or eats or drinks anything, both of these factors can alter, and affect the scientific reliability of the breath test. It is imperative for the accuracy of the breath test sample that neither of these two scenarios occur within 20 minutes of the breath test.
Since a complete DUI stop, investigation and arrest takes several hours for a police officer to complete (including paperwork), officers have continuously tried to find way to reduce the time needed to completely handle a DUI case. One such area that officers have targeted to speed up the investigation process in the 20-Minute Observation Period.
Officers have been trained that the 20-Minute Observation Period, should begin in a closed environment – normally near the breath test machine. With the arrested sitting near the officer responsible for the legality of the breath test. This procedure is how to make sure that this provision has been complied with.
Through aggressive and thorough review of all information available, we at Taracks & Associates, have learned that officers have cut significant corners to speed up the process of DUI investigations. When these time shaving actions do not comply with the administrative code and statutory requirements for an admissible breath test, judges have ruled the breath test results inadmissible. For example, the Criminal Defense Attorneys at Taracks & Associates have uncovered officers who have done the following:
- Communicate over a loud walkie – talkie that drowns out all other noises including burping of a person about to give a breath test.
- Allowing a person who is to submit a breath sample to use the restroom in the middle of the 20-minute observation period, and include the time spent in the bathroom in the watchful period.
- Counted the time transporting an arrested who is handcuffed in the back seat of a police cruiser while separated by a complete sheet of plexiglass, and paying attention to heavy traffic.
- Counted the time performing Field Sobriety Tests (including the walk-n-turn test particularly the portion of the test in which the person is not facing the officer and walking away for 9 steps on the line), and yet testifying that they are sure the person who is not over 15 feet away and facing the opposite direction didn’t “burp”.
These are just a few of the examples that have been raised in court hearings to attempt to convince the Court that the submitted breath test is unreliable, and therefore inadmissible.
Where do we find this type of detailed information? One of the ways is by demanding the prosecutor turn over all evidence including video camera copies pursuant to the Fl. R. Crim. Pro. This discovery includes police reports and documents from the breath test technician. This does not include the deposition or other statement under oath of the officer’s involved in the case.
Since depositions are not normally allowed in a DUI case, how do we get such a statement under oath?
By requesting a Formal Review from the Department of Highway Safety & Motor Vehicles (DHMSV). A Formal Review Hearing is conducted by DHSMV in which Subpoenas are issued by us, and the officers under subpoena must appear and testify about their role in the DUI case. We get to ask the questions.
Since this statement is under oath, we can use any beneficial statements from those officers in the DUI case to help present significantly more facts than are contained in the police reports. This hearing is conducted early on in a case when the officers do not know how we are trying to attack the charge, and most importantly, there is no prosecutor present to try to “tip – off” the officer to a weakness of their case.
It is important to remember that this hearingmust be requested within 10 days of a DUI arrest, or we cannot proceed with this great evidence gathering tool.
If you submitted to a breath test which results are over .08, and you are charged with DUI, your test may violate the 20 Minute Observation Period. To find out if your test results violate this rule, do not delay, and call to schedule a free consultation with one of the Tampa Criminal Defense Lawyers of Taracks & Associates at 813-281-2897. The consultation is free, and time is of the essence!