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What constitutes an adequate observation before administering a breath test? Is 2 breath tests mandatory in PA?

Exton, PA |

If the officer is in his car with the door shuts and I am in my car with the doors shut is this considered sufficient observation? How could be know that I did not burp or have any regurgitation?
Is he also required by PA law to administer two consecutive breath test?

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Attorney answers 6

Posted

An expert can review it and determine whether there are issues with how the test was performed. Typically, the issues will be relevant when you are borderline--meaning just above .08, just above .10 or just above .16. Otherwise, it is unlikely to be an issue. There may be other issues, so be sure to speak with an attorney soon.

Michael L. Doyle
(215) 900-5565

Posted

Here's why those of us so frequently advise questioners to obtain legal representation. You have apparently done a little Internet research in an effort to help yourself in a difficult situation. Totally understandable. Totally useless. You need to have an attorney with whom you fully discuss the event in question. If we are before the preliminary hearing at this point he/she will review the charges and affidavit and be able to answer your questions in context and for your benefit and in partial fulfillment of his employment obligations. Since I haven't communicated with the officer, I'll pass on questions 1 and 2 other than to say the only possible relevance of the answers would have to await the trial. the answer to the last question is No. Hire counsel soon.

Posted

I agree with my colleagues. Secure the services of an experienced criminal defense attorney. All the issues you raised can be explored including options for a first time offenders program if applicable.

Posted

In order to ask you to submit to a test of your breath, blood or urine, the office needs a reasonable basis to belive you were driving and a reasonable basis to believe you were consuming alcohol and/or a contraolled substance. It is a low hurdle for police to overcome.

Some breath tests do require a 20 minute observation period but whether the 20 minute period was adequate will be determined by a judge and will be subject to credibility determination - yours, the officer's and anyone else who is a witness.

No, 2 breath tests are not mandatory - and what is considered a breath test is sometimes confusing. Some breath testing machines, to work properly, do take two samples but I would not consider that to be two tests. The roadside breathalyzer will not be considered a test for the purposes of determining your BAC.

Get to an attorney to have him or her review all of the facts of the case so you'll know whether to challenge the evidence - it is always a case-by-case determination.

Posted

If later on you had another breath or blood test, you're probably referring to a Preliminary Breath Test. "PBT". The requirements to which you refer are inapplicable to the pbt, which is not admissible to prove guilt. The pbt is only used to help establish the legality of the arrest.

The requirements you mentioned are only some of the technicalities that can be used to successfully defend against a DUI charge. Call a dedicated DUI defense attorney now. They can explain your options based upon all the facts of your case.

The information provided here is not intended to provide legal advice on any subject nor is it intended to create an attorney-client relationship. Actual resolution of legal issues depends upon many factors, including variations of facts and state laws. The information is provided for information purposes only.

Posted

The standard DUI breath test protocol allows for two breath samples and a 20 minute observation period. The observation period doesn't require the officer to be staring at you for the entire time but they have to be in a position to observe you. If he was in his car with the door shut then administers the test you may have an issue for a motion to suppress the breath test results. If that fails, then you may be able to cast some doubts on the legitimacy of the breath test results at trial, especially if you did burp or regurgitate during that 20-minute period. DUI is one of the only, if not the only crime where the breath test results (above .08) mandate a jury instruction that in sum and substance tells the jury that if they believe your test was over .08 then they must presume your guilty. Accordingly, challenging the breath test is a must because of that presumption at law. If the officer was not observing you and only took one breath sample then he cannot be very experienced. Officers are typically required to have specialized training to administer these tests, it may be that this officer doesn't have the prerequisite training. A good local DUI attorney should be able to investigate the case and evaluate the issues with you and give specific advice based on your case.

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