Yes, the observation period is VERY IMPORTANT. But, there are a lot of nuances to "getting the results thrown out," as you asked. And you should get a DUI Defense Attorney, who is trained on the Breath Machine, and knows the defenses to such a situation.
Feel free to contact my office if you have more questions about the DataMaster. I was a DataMaster Senior Operator for over 6 years, and performed over 1,000 tests on the machine. I was also responsible for the weekly Calibration checks on the DataMaster when I was a police officer.
Attorney Mark A. Deters
Deters Law LLC
The observation period is essential to breath alcohol testing. Not only be be sure nothing is ingested but to also make sure that the subject does not burp or belch which would cause alcohol in the mouth to be blown into the breath alcohol testing instrument rathe than deep lung air.
Unfortunately, most courts are not aware or do not care about the importance of the leagally required 20 minute observation period before a test and it is difficult to get a test suppressed due to lack of compliance with that requirement. It is something that can be used at trial and could work in your favor if the jury is properly educated.
Both of the other attorneys hit the mark by stating that it is important to make certain that there is no ingestion or regurgitation of anything that will compromise the integrity of the breath test.
The fact that there was only one breath sample tested is of little LEGAL importance in Ohio since Ohio's breath testing regs only require one sample on the Datamaster; however, it is of substantial scientific importance. In order to "try" to get this into evidence will likely require the use of expert testimony. All of the leading authorities on breath alcohol testing have long recommended dual testing with simultaneous instrument checks - but again, the courts have thus far been reluctant to pay much attention to the scientific importance of this.
An agressive and knowledgeable OVI attorney is crtical to developing the legal and scientific issues in your case.
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