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In regard to Breathalyzer (BAC), is it a law that cop must collect sample within 20 minutes of defendants arrest?

Wurtsboro, NY |

I was arrested at 11:15 pm on 05/08/2009, BAC sample was taken on 05/09/2009 at 12:37 a.m. Officer signed pre-anlaysis breathlyzer paperwork (the paperwork which checks calabration etc.) saying he observed me for 20 min., read me my miranda rights, and collected sample within 20 min of arrest. He signed on arrest papers(papers that say what im charged with, what he observed etc.) that he collected sample at 12:37pm, over an hour after being arrested. Doesn't this prove that he lied on my paperwork when he said he collected sample 20 min. within arresting me when he signed that he collected it an hour after i was arrested? Can this help my D.W.I. case, arguing hs credibility?

Attorney Answers 3


It is not the law that a BAC breath sample must be given within 20 minutes of the arrest. The 20 minute observation period refers to a waiting period which is given to all persons (in some states it is 15 minutes) where the person who administers the BAC is supposed to observe the suspect for 20 minutes to ensure that he does not put anything into his mouth or hicup or belch. This wating period also allows any mouth alcohol to disipate. Without the appropriate waiting period, mouth alcohol can be present which will inflate the results of the BAC. You should contact a qualified DUI attorney in New York.

Good Luck

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I agree with the first answer. I write only to point out most states have laws requiring the breath test be taken within 2-3 hours of the driving. If the breath test is not within the 2-3 hour period, then it may lose its presumption of reliability, or a presumption that it reflects your BAC level at the time you were driving. If the BAC test loses either of these presumptions, the prosecution may not be able to prove you guilty beyond a reasonable doubt.

Bottom line: You should consult with an experienced DUI attorney in your area. You can find an experienced DUI attorney in your area at the National College of DUI Defense: Most initial consultations are free. So, you have nothing to lose!

Good luck!

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Mr. Miyatovich is correct you may be conflating the 20 minute observation period with the .o8 or above per se statute's permissible inference (rebuttable presumption) that BAC while testing = BAC while driving. Check your local statute for what that inference is.

Edward J. Blum

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