The Reliability of the Tampa DUI Breath Test Result – The 20 minute Observation Period
There are a multitude of issues that call into question the reliability and accuracy of your Tampa, Pasco, or Pinellas County jail’s breath test machine. For example, the arresting officer will not attempt to explain how his breath test machine will translate alcohol on your breath into an accurate reading of the alcohol level in your blood. Another problem with the breath test machine is that, unlike a blood sample or a urine sample, the breath sample itself cannot be captured and stored. That means the defendant cannot go back later and retest his breath sample for accuracy and reliability. All that remains from the breath test sample is a print out of the results.
In an attempt to lend some semblance of reliability to these machines, the legislature requires FDLE, or the Florida Department of Law Enforcement, to enact rules and regulations regarding the proper administration of the breath test machines. This implied consent statute further requires that, to be admissible in court, any breath samples retrieved from you after an arrest must be in “substantial compliance” with the rules. (The fact that the Florida Department of Law Enforcement writes their own rules regulating the breath test machines their officers use is an issue for another day).
One of these FDLE rules, Florida Administrative Code Rule 11D-8007 , regulates the method in which the officer takes the breath sample from the arrested. The rule requires the breath test operator, agency inspector, arresting officer, or designated person shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least twenty (20) minutes before administering the test.
The intent of the rule is clear: we don’t want anything in the arrested person’s mouth that could interfered with the accuracy or reliability of the machine. Burping up alcohol from the stomach, acid reflux, a strong couch, chewing gum, eating bread, and a million other things will destroy the reading.
Therefore, if the officer does not maintain a 20 minute observation period before securing the test breath sample, he cannot later assure the jury that the test result is reliable and free from the intereferents listed above. After all, the breath sample is gone immediately, and incapable of retesting. In such a case, your Tampa criminal defense lawyer may very well be successful in having the judge declare the breath test evidence inadmissible in trial.
For example, in one Tampa DUI case, one Officer submitted a signed affidavit that he had observed the arrested for approximately 30 minutes. However, the security surveillance video from the jail showed that the arrested went into the bathroom for 2 minutes, and was clearly out of the officer’s sight for that time. Because the arrested was out of the officer’s sight for two minutes, the officer could not reasonably ensure that the arrested had not taken anything by mouth or regurgitated for the twenty minute period. Accordingly, the breath test results were held inadmissible.
So what happens if your got a tampa DUI case pending, and you DUI breath test result is suppressed? Without that substantial piece of evidence, the State may be required to reduce you dui to a reckless or even dismiss the case.
Tampa DUI Lawyer | Pinellas DUI Attorney | Pasco Hillsborough New Port Richey said,
August 31, 2011 @ 10:26 pm
[...] on a Motion in Limine asking for exclusion of the breath test result because the State cannot prove “substantial compliance” with the administrative code. It goes like this: 1. Law Enforcement would love to have blood results to show alcohol [...]