Under the California Code of Regulations, the officer is supposed to observe you for fifteen minutes before giving you a breath test, to make sure you don't burp, vomit, eat or do anything else that might affect the test.
Failure to observe for the required fifteen minutes doesn't keep the test from being used as evidence at trial, but it can be used to attack the accuracy of the test. The officer will usually say he kept an eye on you while driving you to the police station.
He handheld device used at the side of the road is used as a screening test, so the officer didn't bother with the 15 minute period or a second test. There isn't really that much difference between a .109, a .12 and a .13, since breath testing devices have a .02 margin of error either way.
A defense attorney may be able to use the test results to show your blood alcohol was still rising when the officer stopped you, so it was under .08 when you were driving. (That doesn't work when someone tells the cop he had one beer, three hours ago, and his breath alcohol test says .15.)
Remember, you're facing two separate legal matters. In addition to the criminal court case, DMV will automatically suspend your license if you don't request a DMV hearing within ten days of your arrest. A good DUI attorney may be able to save your license and keep you out of jail.
In addition to the previous answer I would like to add that the courts are pretty liberal in interpreting the 15 minute observation period.
From the time the police officer first contacted you, asked you basic questions, had you perform Field Sobriety Tests, arrested you, drove you to the jail, and ultimately had you take a breathalyzer test more than 15 minutes likely elapsed. The officer will say that he continuously observed you during this period and the court will likely be satisfied.
Additionally, if you or your attorney is able to demonstrate to the court that the 15 minute observation was not complied with that does not mean the test is thrown out. A jury would be instructed that in weighing the evidence they can consider that the 15 minute observation period was not complied with. The violation of the 15 minute period goes to the weight of the evidence, not the admissibility of it.
The language governing the "observation period' varies from state to state. In Florida for example, an officer "must make reasonably certain" that the subject hasn't belched, burped or vomited for 20 minutes prior to the breath test. Additionally, the breath machines have mouth alcohol detectors which, if working properly should detect mouth alcohol.
Keys to avoid California DMV Suspension Action in Many Breath Test Cases - No Presence & All Senses
Posted 6 months ago in DUI / DWI. Jurisdiction: California Comments (0)
George Fredrick Mueller
Written by: George Fredrick Mueller
Contributor Level 7
San Diego, CA | Avvo Rating: 9.2 | Client Reviews (11) 5.0 star rating
Add to list Print Send to a friend Share this
There is a rebuttable presumption of reliability of the breath test results at DMV hearings. Once the driver shows a failure to adhere to any regulation, the burden shifts to the DMV to establish the reliability of the test for DMV purposes. If DMV does not establish, it must set aside suspension.
California requires the breath testing officer to continuously observe the arrestee for 15 minutes prior to collection of breath sample
California Code of Regulations 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.
Manriquez cases may sometimes permit observation during the transportation time, officer must remain with the subject & able to use all of his senses
In order for the officer to maintain he observed the subject for 15 continuous minutes just prior to testing, the two-prong requirement must be met: (1) The officer must remain present with the subject at all times and 2) The officer must be able by the use of all his or her senses to make the determination of whether or not the subject (even slightly) regurgitated gas, burped, belched, vomited, drank, chewed gum, reingested alcohol, etc. or did any of the activities prohibited by Title 17, Section 1219.3. Often times, the officer will attempt to maintain he continuously observed the subject for 15 minutes prior to testing But when one looks at the times of the breath tests, the time of arrest, and the time of transportation, it may be impossible unless transportation time is somehow attempted to be included. This happens often when the officer testifies the officer somehow "observed" the subject while driving to the breath test location.
There may be lapses or interruptions in continuity by failing to remain present or able to use all senses
There may be lapses or interruptions in continuity by failing to remain present or able to use all senses when the officer (a) puts the subject in the vehicle and closes door, (b) does not tilt mirror to look at the subject in the backseat during transportation, (c) is unable to continuously hear because of noise emitting from the radio or fast-moving vehicle, or conversations with another officer, (d) upon arrival at breath test location, leaves subject alone after exiting vehicle & prior to removal, and/or (e) puts gun in trunk. The below case of Manriquez v. Gourley must be reviewed in order to point out that the officer (1) failed to remain with the subject and/or (2) was unable to use all of his senses during any purported continuous 15 minute observation period prior to testing.
Manriquez v. Gourley
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.) COUNSEL 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]
Sign up to receive a 3-part series of useful information and legal advice about DUIs.