In NJ, the answer is NO. The observation must be by the operator of the breath test device (in most jurisdictions this is the Alcotest unit) for a continuous 20 minute period. The observation period is supposed to be continuous so observations can be made of the person's demeanor, to ensure that nothing was put into the mouth, and to ensure that there was nothing being belched up (which would tend to give a false reading higher then the BA reading actually is. Check with an experienced criminal defense lawyer like Mr. Dane at http://www.avvo.com/attorneys/92866-ca-joseph-dane-243529.html or Mr. Kaman at http://www.avvo.com/attorneys/94107-ca-john-kaman-188590.html who are licensed to practice law in CA to get an opinion of what California requires. Good luck.
This response does not constitute legal advice. Given the nature of this website, it does not create an attorney-client relationship. This answer is provided solely for informational purposes, for you to use as a starting point when speaking directly with a lawyer in your State. I urge you to immediately contact an experienced criminal defense lawyer admitted to practice law in your State before you make any decisions about this case.
It depends. Observing cop must a) remain in your presence and b) use all of his senses to observe (sight, smell and sound) including tilting his mirror so officer can see you during observation time.
Here's key language from Manriquez:
"...so long as the officer remains present with the subject and able by the use of all his or her senses to make that determination...
Only part of Manriquez fits in this space.
Here is the relevant Title 17 - section:1219.3. Breath Collection:
A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. 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, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.
While the below California case of Manriquez v. Gourley permits observation during the transportation time, the hearing officer needs to be aware of that case and the officer should have had to testify the officer observed you while driving to the breath test location.
Please take a look at this to obtain a better appreciation of the required observation.
Manriquez v. Gourley (2003) 105 Cal.App.4th 1227 , 130 Cal.Rptr.2d 209[No. D039757. Fourth Dist., Div. One. Jan. 31, 2003.]
JAIME CORDOVA MANRIQUEZ, Plaintiff and Respondent, v. STEVEN GOURLEY, as Director, etc., Defendant and Appellant.
(Superior Court of San Diego County, No. GIC776015, Thomas C. Hendrix, Judge.)
(Opinion by O'Rourke, J., with Kremer, P. J., and McDonald, J., concurring.)
Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputy Attorneys General, for Defendant and Appellant.
John T. Burke for Plaintiff and Respondent. [105 Cal.App.4th 1229]
The Department of Motor Vehicles (DMV) suspended Jaime Cordova Manriquez's driver's license for driving with 0.08 percent or [105 Cal.App.4th 1230] more of alcohol in his blood. (Veh. Code, § 13353.2.) An administrative hearing officer upheld the suspension, determining the arresting officer complied with state regulations requiring a 15-minute period of continuous observation before administering a breath test (Cal. Code Regs., tit. 17, § 1219.3, hereafter regulation 1219.3). fn. 1 The trial court granted Manriquez's ensuing petition for writ of mandate on the ground the observation criterion was not satisfied. On appeal, the DMV contends (1) the trial court erred by concluding the officer's observation of Manriquez did not comply with the regulation; and (2) even if the officer did not comply, Manriquez did not establish the violation resulted in an inaccurate test result.
We conclude the trial court based its ruling on an incorrect interpretation of the regulation setting forth the continuous observation requirement and, as a result, erred by concluding Manriquez's evidence was sufficient to rebut the presumption the arresting officer properly performed the breath test. We therefore reverse the judgment.
Factual and Procedural Background
At 12:01 a.m. on August 18, 2001, California Highway Patrol (CHP) Officer Timothy Fenton stopped Manriquez after noticing his Plymouth weaving in the No. 3 lane of northbound Interstate 5. When he contacted Manriquez through the car's front passenger window, Officer Fenton observed indications of alcohol intoxication including bloodshot eyes and an odor of alcoholic beverage from the car's interior. Based on his administration of a series of field sobriety tests, the officer concluded Manriquez was under the influence of alcohol and at 12:17 a.m. arrested him for violation of Vehicle Code section 23152, subdivision (a). ....
The cop's failure to observe you for 15 minutes doesn't automatically result in the case being dismissed.
That requirement is an element of Title 17 of the California Code of Regulations, which lists the licensing rules for forensic alcohol testing.
It's an avenue for your lawyer to attack the accuracy of the test at trial.
In California, there is case law that allows the observation to be done in a number of ways. This includes one officer beginning the observation, followed by another officer concluding the observation. The observation does not have to be done by the officer who administered the test.
You should consult with an attorney who specializes in DUI law in your ares. There are a number of methods to determine the accuracy of the observation period that include obtaining the dispatch transmissions related to your case, as well as the records of the machine that you were tested on. The 15 minute observation period is only one of many issues that present themselves when defending a breath case in California.
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