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Breath Test Defense – Why is the mouth alcohol defense important? – Part 4

Posted by Ben Sessions | Nov 22, 2014 | 0 Comments

THE WILLINGNESS OF THE COURTS TO ADMIT QUESTIONABLE BREATH TESTING EVIDENCE HAS FOSTERED THE “MOUTH ALCOHOL” DEFENSE

Breath testing evidence is usually admissible even when law enforcement fails to follow their own department's protocols regarding the observation period prior to breath testing.  This failure to perform the observation period “goes to weight, not admissibility.”  It is well-recognized within the forensic breath-alcohol testing community that “[m]ost mouth alcohol-based challenges can be successfully avoided by strictly adhering to a pretest observation and alcohol deprivation period and demonstrating agreement between duplicate breath tests.”[1] Nonetheless, the mouth alcohol defense remains fertile ground largely as a result of the refusal of the courts and/or legislatures to require law enforcement to adhere to scientifically acceptable protocol during the administration of breath tests.  As demonstrated in Appendix A, most courts have continually held that questionable adherence to the required observation-deprivation period goes to the weight, not the admissibility, of breath test evidence.  As a result, almost every breath testing case will come with a built-in defense that may not even require an expert.



[1] Harding and Zettl, supra note 1, at § 7.5.

APPENDIX A

Alabama

Morgan v. City of Vestavia Hills, 628 So. 2d 1047 (Ala. Crim. App. 1993)

Test results admissible where officer testified that appellant was continuously under his observation from the time of the stop, which occurred at approximately 9:30 p.m., until the test was administered at approximately 10:30 p.m. and second officer stated that the appellant was under her observation for approximately 30 minutes after they reached city hall before she administered the test. Observation is valid even if it is done by arresting officer and not officer who performs the test.

Ala. Admin. Code  r. 370-1-1-.01 (2)(r) Deprivation.

For the purpose of the METHOD as referred to by § 32-5A-194 Code of Ala. 1975, as amended, prior to submitting to a Breath Alcohol Test a person should not be allowed to put anything in their mouth for at least 20 minutes.

Alaska

Williams v. State, 884 P.2d 1 (Alaska Ct. App. 1994)

Breath-test results properly admitted, where, after requisite 15-minute pretest observation period, defendant's first attempt resulted in aborted test (”mouth alcohol” fault) and officer administered second, successful test 9 minutes later, since strict compliance with rule in troopers' training manual that second 15-minute observation period should be observed before retesting was not required in light of expert testimony that trooper manual varied from actual practice and nothing in science of test machine's operation required second full observation period.

Alaska Stat. § 63.040

(a) The following procedure must be used to obtain and analyze a breath sample on a breath test instrument:

(1) observe the person to be tested for at least 15 minutes immediately before testing, to ensure that the person does not regurgitate or place anything in his or her mouth during that period;

(2) respond to the visual display on the instrument by entering the data requested;

(3) when the visual display indicates that the instrument is ready to accept the person's breath sample, instruct the person to blow into the mouthpiece until the visual display indicates that a satisfactory sample has been obtained.

Arizona

State v. Tyszkiewicz, 104 P.3d 188 (Arizona Ct. App. 2005)

Foundational requirements for admission of test results met where officer who administered breath test admitted that another officer had observed defendant for requisite 15-minute period before test, and that administering officer had complied with Department of Health Services (DHS) checklist for administering test.

State v. Corrales, 659 P.2d 658 (Arizona Ct. App.1982)

Sufficient foundation was laid for admission of breathalyzer test results, even though no evidence directly established that defendant had nothing in his mouth at time of test or that he had taken no food or drink within 15 minute observation period prior to administration of test, where evidence showed that defendant had been handcuffed for almost one hour prior to administration of test and thus could not have ingested anything.

Ariz. Rev. Stat. § 28- 1323.

A. The results of a breath test administered for the purpose of determining a person's alcohol concentration are admissible as evidence in any trial, action or proceeding on establishing the following foundational requirements:

***

4. The operator who conducted the test followed an operational checklist approved by the department of health services or the department of public safety for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement.

***

EXHIBIT E-1
OPERATIONAL CHECKLIST

ARIZONA DEPARTMENT OF PUBLIC SAFETY

STANDARD OPERATIONAL PROCEDURE
INTOXILYZER MODEL 5000

DUPLICATE BREATH TEST

SUBJECT NAME DATE

AGENCY OPERATOR

INSTRUMENT SERIAL # LOCATION

TEST RESULTS 0. AC TIME

0. AC TIME

0. AC TIME

Immediately preceding administration of the tests, subject underwent at least a 15-minute deprivation period:

From to by

(Time) (Time) (Name)

( ) 1. Display reads “PUSH BUTTON TO START TEST” or “PRESS START TEST BUTTON TO START NEXT TEST”. Breath tube is warm to touch.

( ) 2. Press Start Test button.

( ) 3. If display reads “Insert Card”, do so.

( ) 4. Input information in response to display.

( ) 5. Air Blank completed.

( ) 6. If display reads “IS SIMULATOR SOLUTION TEMPERATURE 34° C ± 0.2° C?”, type Y or N and verify Concurrent Calibration Check completed.

( ) 7. Insert mouthpiece into breath tube. Have subject blow as long as possible. Record AC result above.

( ) 8. Air blank completed.

( ) 9. a. If display reads “WAIT”, go to step 11

OR

( ) b. If display reads “TEST COMPLETE”. Go to step 10.

OR

( ) c. If display reads “IS SIMULATOR SOLUTION TEMPERATURE 34° C ± 0.2° C?”, type Y or N and verify Concurrent Calibration Check completed. Go to step 10.

( ) 10. When test complete, remove printed record.

( ) 11. Repeat steps 1 through 9.

Note: Duplicate breath tests shall be administered at intervals of not less than 5 nor more than 10 minutes apart and the two consecutive tests shall agree within 0.020 alcohol concentration.

DPS Form Exh E-1 (Rev 05-1)

Arkansas

Williford v. State, 683 S.W.2d 229 (Arkansas Sup. Ct. 1985).

The arresting officer testified that for a period of 26 minutes he observed Williford at the scene of the arrest, in the patrol car's rear view mirror as Williford sat on the passenger side of the back seat while he was being taken to the police station, and at the station itself. He said that he would have been aware of Williford's having put anything in his mouth. The officer himself operated the testing device. We do not read the Health Department instruction as requiring that the officer stare fixedly at the arrested person for 20 minutes.

California

Taxara v. Gutierrez, 8 Cal. Rptr. 3d 172 (California Ct. App. 2003)

Allowing successive observers to satisfy the continuous observation requirement does not defeat the purpose of the regulation. The continuous observation requirement helps ensure the test's reliability. (Manriquez, supra, 105 Cal.App.4th at p. 1236, fn. 3, 130 Cal.Rptr.2d 209.) That purpose is served when the administrator of the breath test observes the subject for at least 15 minutes before the test. That purpose is also served, however, when two or more observers split the continuous observation of the test subject. Two or more observers, acting in succession, can ensure the subject did not ingest food or drink, regurgitate, vomit, or smoke in the 15 minutes before the test, just as easily as a single observer.

Cal. Code Regs. tit. 17, § 1219.3

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.

Colorado

Barone v. State Dept. of Revenue, Motor Vehicle Div., 736 P.2d 432 (Colorado Ct. App. 1987)

Close and continuous observation for 20 minutes sufficient where approximately 33 minutes elapsed between time officer first contacted driver and time test was conducted, during which time officer observed driver through rear-view mirror of police car during short drive to station and while at station driver was continuously in immediate presence of officer; officer need not maintain constant face-to-face observation by staring fixedly at arrested person during observation period.

5 Colo. Colo. Code Regs. 1005-2:4 .

4.1 This part establishes the minimum standards for collection and testing of evidential breath alcohol samples that include:

4.2 Pre-Analytic EBAT requirements include:

4.2.3 Completion of a 20-minute deprivation period conducted at the certified EBAT facility by a certified EBAT instructor or operator that is in an active status that must include;

4.2.2.1 Removal of any foreign material from the subject's mouth cavity that is not permanent in nature, prior to starting the 20-minute deprivation period, and

4.2.2.2 Depriving the subject access to foreign material that may be introduced into the mouth cavity during the 20- minute deprivation period, and

4.2.2.3 Observing the subject for signs of belching, regurgitation, or intake of any foreign material into the mouth cavity during the 20-minute deprivation period. If such observations occur, the 20-minute deprivation period must be repeated under the same conditions prior to testing.

Connecticut

Conn. Gen. Stat. Ann. § 14-227a (West 2013)

(b) Admissibility of chemical analysis. Except as provided in subsection (c) of this section, in any criminal prosecution for violation of subsection (a) of this section, evidence respecting the amount of alcohol or drug in the defendant's blood or urine at the time of the alleged offense, as shown by a chemical analysis of the defendant's breath, blood or urine shall be admissible and competent provided: (1) The defendant was afforded a reasonable opportunity to telephone an attorney prior to the performance of the test and consented to the taking of the test upon which such analysis is made; (2) a true copy of the report of the test result was mailed to or personally delivered to the defendant within twenty-four hours or by the end of the next regular business day, after such result was known, whichever is later; (3) the test was performed by or at the direction of a police officer according to methods and with equipment approved by the Department of Emergency Services and Public Protection and was performed in accordance with the regulations adopted under subsection (d) of this section; (4) the device used for such test was checked for accuracy in accordance with the regulations adopted under subsection (d) of this section; (5) an additional chemical test of the same type was performed at least ten minutes after the initial test was performed or, if requested by the police officer for reasonable cause, an additional chemical test of a different type was performed to detect the presence of a drug or drugs other than or in addition to alcohol, provided the results of the initial test shall not be inadmissible under this subsection if reasonable efforts were made to have such additional test performed in accordance with the conditions set forth in this subsection and such additional test was not performed or was not performed within a reasonable time, or the results of such additional test are not admissible for failure to meet a condition set forth in this subsection; and (6) evidence is presented that the test was commenced within two hours of operation. In any prosecution under this section it shall be a rebuttable presumption that the results of such chemical analysis establish the ratio of alcohol in the blood of the defendant at the time of the alleged offense, except that if the results of the additional test indicate that the ratio of alcohol in the blood of such defendant is ten-hundredths of one per cent or less of alcohol, by weight, and is higher than the results of the first test, evidence shall be presented that demonstrates that the test results and the analysis thereof accurately indicate the blood alcohol content at the time of the alleged offense.

Conn. Agencies Regs. § 14-227a-10b

(c) Methods for conducting direct breath alcohol tests

All direct breath alcohol tests shall be conducted in accordance with the following procedures:

(1) Sample collection

(A) The expired breath sample shall be air that is alveolar in composition. The breath sample shall be collected only after the subject has been monitored for at least 15 minutes prior to the collection of each sample. During this period, the test subject shall not have ingested alcoholic beverages or food, regurgitated or smoked.

(B) Samples of the test subject's breath shall be collected with a device or instrument approved in accordance with subsection (b) of this section.

(2) Operation of device or instrument

(A) Operators shall follow the manufacturer's operating instructions for the device or instrument, unless the commissioner has accepted a modification of such instructions. If the instructions have been so modified, then the instructions as modified shall be followed. The operating instructions applicable to the device or instrument shall be available at each location where a device or instrument is used.

(B) All agencies using a device or instrument shall make available for inspection by the commissioner all devices or instruments used by them, together with the current logbook associated with each such device or instrument. Such logbook shall include the identity of each operator using the device or instrument, the frequency with which the device or instrument has been checked for accuracy and the results of each subject's analysis and calibration.

Delaware

Clawson v. State, 867 A.2d 187 (Delaware Sup. Ct. 2005)

The evidence in the present record shows that Trooper Wenk started the observation period at 11:32 p.m., and that he inserted the intoxilyzer card into the machine at 11:51 p.m. The record does not show that Trooper Wenk or any other police officer actually observed Clawson for an uninterrupted twenty minute period before inserting the intoxilyzer card into the machine. In the absence of this evidence, we must conclude that admitting the intoxilyzer test result constituted an abuse of discretion.

Florida

Kaiser v. State, 609 So. 2d 768 (Florida. Dist. Ct. App. 1992)

Florida Department of Law Enforcement Alcohol Testing Program, INTOXILYZER® 8000 Reference Guide, p. 8.

Observation Period

The user records the time the observation period began in military time. If the observation period is less than twenty (20) minutes prior to beginning the breath test the instrument will count down the remaining time prior to continuing the testing process.

Georgia

Dozier v. Pierce, 631 S.E.2d 379 (Georgia Ct. App. 2006)

Police officer's failure to wait for 20 minutes between his first and second attempts to administer breath test on motorist did not invalidate the testing, even though machine's operator manual dictated a 20-minute waiting period between samples; any deviation from manual went to weight of the tests, rather than admissibility.

Smith v. State, 364 S.E.2d 907 (Georgia Ct. App. 1988)

Even if driver had argued that intoximeter test results were improperly admitted because he was not held under observation or for at least 20 minutes prior to administration of test, such argument presented no ground for reversal where test in question was in fact administered to driver more than 20 minutes following his arrest; it was not feasible to keep driver under observation during entire period due to need to clear accident scene; and there was no testimony that would suggest that driver consumed any additional alcohol during this period.

Hawaii

State v. Thompson, 814 P.2d 393 (Hawaii Sup. Ct. 1991)

The record indicates that Officer Chong continuously observed appellant for a period of 15 minutes, from 3:56 a.m. to 4:11 a.m. During that period, appellant did not ingest, vomit or smoke. We hold that there was strict compliance with § 11–111–2.1(b) of the Rules, and appellant's argument must be rejected.

The statute relied upon in Thompson has been repealed.

Section 11–111–2.1(b) of the Rules provides as follows:

(b) The subject shall be continuously observed for not less than fifteen minutes prior to the collection of the breath sample, during which period the subject shall not have ingested alcoholic beverages, vomited, eaten or smoked.

Idaho

State v. Besaw, 306 P.3d 219 (Idaho Ct. App. 2013)

Adequate monitoring where trooper testified that driver was seated in back of patrol car with back door open during 15-minute monitoring period and that officer stood, bent over, watching him, and officer acknowledged that he spoke briefly with three other people during the monitoring period, but testified that his head was roughly two or three feet from defendant's head as he conducted observation and that he never turned his back or moved away during the observation period.

State v. DeFranco, 144 P.3d 40 (Idaho Ct. App. 2006)

The I.S.P. approved the Alco-Sensor III breathalyzer and issued an operator's training manual for that machine that presents the approved methodology for administering the test. See IDAPA 11.03.01.013(.03). The pertinent portion of the manual instructs: The mucous lining of the mouth cavity and nasal passages stores alcohol for some time after a person consumes alcohol. Normal body processes eliminate residual alcohol within 15 minutes. Monitor the subject for 15 minutes. During this time, the subject may not smoke, consume alcohol, eat, belch, vomit, use chewing tobacco, or have gum or candy in the mouth. If belching or vomiting does occur or something is found in the mouth, have it removed and wait an additional 15 minutes.

DeFranco contends that the magistrate court erred in finding that the trooper complied with the observation period. We agree because Stemm's level of monitoring could not reasonably be expected to accomplish the purpose of the requirement.

Idaho Admin. Code r. 11.03.01.014

03. Administration. Breath tests shall be administered in conformity with standards established by the department. Standards shall be developed for each type of breath testing instrument used in Idaho, and such standards shall be issued in the form of analytical methods and standard operating procedures. (4-7-11)

Idaho Breath Alcohol Standard Operating Procedure Issuing Authority—ISPFS Quality Manager Revision 5, Effective 8/20/2013, Page 15 of 22.

Evidentiary Testing Procedure

Proper testing procedure by certified Operators is necessary in order to provide accurate results. Instruments used in Idaho measure alcohol in the breath, not the blood, and report results as grams of alcohol in 210 liters of breath.

6.1    Prior to evidentiary breath alcohol testing, the subject/individual should be monitored for fifteen (15) minutes. Any foreign objects/materials which have the potential to enter the instrument/breath tube or may present a choking hazard should be removed prior to the start of the 15 minute monitoring period. During the monitoring period the subject/individual should not be allowed to smoke, drink, eat, or belch/burp/vomit/regurgitate.

NOTE: If a foreign object/material is left in the mouth during the entirety of the 15 minute monitoring period, any potential external alcohol contamination will come into equilibrium with the subject/individual's body water and/or dissipate so as not to interfere with the results of the subsequent breath alcohol test.

The breath alcohol test must be administered by an Operator currently certified in the use of the instrument.

False teeth, partial plates, bridges or comparable dental work installed or prescribed by a dentist or physician do not need to be removed to obtain a valid test (see above NOTE for clarification on foreign objects being left in the mouth).

The Operator may elect a blood test in place of the breath alcohol test if there is a failure to complete the 15 minute monitoring period successfully.

During the monitoring period, the Operator should be alert for any event that might influence the accuracy of the breath alcohol test.

6.1.4.1 The Operator should be aware of the possible presence of mouth alcohol as indicated by the testing instrument. If mouth alcohol is suspected or indicated, the Operator should begin another 15- minute monitoring period before repeating the testing sequence.

6.1.4.2 If, during the 15-minute monitoring period, the subject/individual vomits or regurgitates material from the stomach into the subject/individual's breath pathway, the 15-minute monitoring period should begin again.

6.1.4.3 If there is doubt as to the events occurring during the 15 minute monitoring period, the officer should look at results of the subsequent breath samples for evidence of potential alcohol contamination. For clarification see section 6.2.2.2.

Illinois

People v. Witt, 630 N.E.2d 156 (Illinois Ct. App. 1994)

Where, after having observed DUI defendant for required 20 minutes before administering first BAC test, officer did not, on discovery that defendant wore false teeth, wait additional 20 minutes before administering second test, observational requirements were met as to admissibility of result of second test.

People v. Diaz, 617 N.E.2d 848 (Illinois Ct. App. 1993)

State established compliance with requisite 20-minute observation period prior to administration of breath test for blood alcohol level, where officer observed subject for 20 minutes, attempted to take adequate breath sample, and waited additional 11 minutes before successfully taking sample on second effort, since failure of first test did not restart observation period.

People v. Caruso, 559 N.E.2d 545, 551 (Illinois Ct. App. 1990)

The first factor mentioned in Orth states that a foundation shall include evidence that the tests were performed according to the uniform standard adopted by the Department of Public Health. There are two possible interpretations to this factor. One is that it refers to the Department's regulations on operational standards (77 Ill.Adm.Code § 510.60 (1985)), entitled “Standards for the Operation of Approved Breath Analysis Instruments,” which requires the following: “(a) Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.

Indiana

State v. Albright, 632 N.E.2d 725 (Indiana Sup. Ct. 1994)

Trial court in prosecution for driving under influence of alcohol erred in suppressing breath-test results, where officer's testimony that he administered two tests, noted peanut fragments in arrestee's mouth, directed arrestee to rinse his mouth, and waited 24-25 minutes before administering third test, satisfied requirement that state prove compliance with requisite 20-minute pretest observation period.

260 Ind. Code § 1.1-3-1 Approval of methods; checklists

Sec. 1. (a) The director shall approve a method for the administration of a test to analyze breath for ethanol for each approved type of instrument in use.

(b) The approved method shall be followed in making an analysis of breath for ethanol.

(c) The director may approve and distribute a checklist that sets forth in abbreviated form the approved method for the administration of a test to analyze breath for ethanol for each approved type of instrument in use.

(d) A method approved by the director for use with an approved instrument shall remain in effect from the date of approval until such time as the department shall adopt a rule changing the approved method.

260 Ind. Admin. Code 1.1-4-8

Sec. 8. The following is the approved method to conduct a B.A.C. Datamaster with keyboard test for ethanol intoxication:

(1) The person to be tested must:

(A) have had nothing to eat or drink;

(B) not have put any foreign substance into his or her mouth or respiratory tract; and

(C) not smoke within twenty (20) minutes before the time a breath sample is taken.

Iowa

State v. Hershey, 348 N.W.2d 1 (Iowa Sup. Ct. 1984)

Circumstantial evidence was sufficient for the trial court to find that defendant neither ate, drank, nor smoked during 15 minutes before test was given where, during part of period he was not watched continuously, his hands were handcuffed behind his back and he had no access to tobacco, food or beverages.

Kansas

City of Overland Park v. Rhodes, 257 P.3d 864 (Kansas Ct. App. 2011)

Testimony by police detective that he was so close to allegedly intoxicated driver that “he would have noticed if she had vomited, belched, or regurgitated during the 20–minute deprivation period, prior to administration of a breath test, was affirmative evidence that the breath test was not contaminated This supported admissibility of breath-test in prosecution of driver for DUI.

Martin v. Kansas Dept. of Revenue, 163 P.3d 313 (Kansas Ct. App. 2006)

Testing procedures substantially complied with the “immediate presence” requirement for an alcohol breath test. Officer stepped out of testing room for only a few seconds each time he left room, and although motorist coughed and cleared his throat several times during testing period, motorist did not suggest that his breath sample was contaminated or breath test machine malfunctioned.

      Kentucky

Hadaway v. Com., 352 S.W.3d 600 (Kentucky Ct. App.  2011)

Officer's testimony that he observed defendant for 26 minutes prior to administering the breath alcohol test was sufficient to satisfy rule requiring breath test operators to observe suspects for 20 minutes before administering test, even though officer did not testify as to whether defendant used an inhaler during that period of time; where another officer testified that defendant “absolutely” did not use an inhaler in his presence.

Greene v. Com., 244 S.W.3d 128 (Kentucky Ct. App. 2008)

Trial court did not err in denying defendant's motion to suppress blood-alcohol test results, despite inconsistencies in documentation regarding whether officer properly observed defendant for twenty minutes before administering the test; officer was certain that he observed defendant for the required twenty minutes, and trial court was in the best position to judge credibility of witnesses. KRS 189A.103(3).

500 Ky. Admin. Regs. 8:030

Section 1. The following procedures shall apply to breath alcohol tests:

(1) A certified operator shall have continuous control of the person by present sense perception for at least twenty (20) minutes prior to the breath alcohol analysis. During that period the subject shall not have oral or nasal intake of substances which will affect the test.

Louisiana

State v. Clark, 446 So. 2d, 293 (Louisiana Sup. Ct. 1984)

An officer must conduct a general observation of a defendant suspected of driving while intoxicated (DWI) for a period of fifteen minutes prior to conducting chemical test for intoxication, whereby the defendant shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited or taken anything by mouth. LSA–R.S. 32:662(A)(1)(a). State v. Pickard, 918 So. 2d 485 (La. Ct. App. 2d Cir. 2005).

State v. Meredith, 833 So. 2d 1125 (Louisiana Ct. App. 2002)

State failed to prove that it complied with regulation requiring that defendant be observed for period not less than 15 minutes prior to administration of chemical test for intoxication, and thus, test results were inadmissible as presumptive evidence of defendant's guilt in DWI prosecution; although officers claimed that they complied with this regulation, officers testified that defendant was first observed at approximately 2:29, police log indicated that testing machine was turned on at 2:38, arrest report indicated that defendant was arrested at 2:41, and printout from testing machine indicated that test was given at 2:41. LSA–R.S. 32:662, 32:663;

La. Admin. Code tit. 55, pt. I, § 513, subd. A.

A. General observation of the subject for a period of not less than 15 minutes prior to testing whereby the subject shall not have ingested alcohol, alcoholic beverages, regurgitated, vomited, or taken anything by mouth.

            Maine

            Maryland

Md. Code Regs. 10.35.02.08

G. Evidentiary Breath Test Method.

(1) For at least 20 minutes before a breath sample is taken, an individual may not:

(a) Eat or drink;

(b) Have any foreign substance in the individual's mouth or respiratory tract; or

(c) Smoke.

(2) The individual shall be observed and mouth checked.

(3) Observation of the individual shall be performed by:

(a) A breath test operator;

(b) Other uniformed or civilian law enforcement personnel; or

(c) Any combination of a breath test operator and uniformed or civilian law enforcement personnel.

(4) The testing procedure shall begin with a blank test to ensure that no alcohol is present in the breath path of the breath testing instrument.

(5) A validation test shall be run before the individual begins the testing process.

(6) If the breath testing instrument fails to obtain a reading plus or minus 10 percent of the stated alcohol concentration on the validation test, then the subject test shall be discontinued.

(7) The individual shall be instructed to take a breath and then deliver a breath sample into the instrument by blowing into the mouthpiece and breath tube until instructed to stop.

(8) After each subject breath sample, a blank check shall be performed to ensure that no alcohol is present in the breath path.

(9) Two breath samples shall be collected and analyzed by the breath testing instrument.

(10) A third breath sample shall be collected only if the absolute difference between the results of the first and second samples exceeds 0.020 g/210L.

(11) A validation test of known alcohol concentration shall be run after the individual has given the required number of breath samples.

(12) If the instrument fails to obtain a reading plus or minus 10 percent of the stated concentration on the validation test, then the subject test is invalid.

(13) The lower of the two or lowest of the three results of the subject test shall be truncated to the second decimal place and reported as the result of the breath test.

Md. Code Ann., Cts. & Jud. Proc. § 10-304 (West)

Breath tests

(b)(1) The test of breath shall be administered by a qualified person with equipment approved by the toxicologist under the Postmortem Examiners Commission at the direction of a police officer.

(2) The officer arresting the individual may not administer the test of breath.

            Massachusetts

Com. v. Pierre, 890 N.E.2d 152 (Massachusetts. Ct. App. 2008)

A new 15-minute waiting period will be necessary if, during 15-minute waiting period in which operator of breath test machine must observe motorist before administration of breath test, the motorist brings any substance into his mouth, such as food, drink, or regurgitation by burping or hiccough, that would have a contaminating impact on the accuracy of the test results. Observation of motorist by breath test machine operator may occur outside of the room in which the breath test is administered.

501 Mass. Code Regs. 2.01

2.01: Purpose

The purpose of 501 CMR 2.00 is to establish rules and regulations regarding satisfactory methods, techniques and criteria for breath tests of those persons who have been arrested for operating a motor vehicle while under the influence of intoxicating liquor or a related offense. It also establishes a statewide training and certification program for all operators of breath test devices and a certification program of breath test devices in accordance with M.G.L. c. 90, § 24K. 501 CMR 2.00 does not apply to portable breath test devices used to conduct pre-arrest screening.

501 Mass. Code Regs. 2.13

(2) An arrestee who has been offered a breath test and who consents to submit to a breath test, shall be administered a breath test using a certified breath test device within a reasonable period of time.

(3) The BTO shall observe the arrestee for no less than 15 minutes immediately prior to the administration of the breath test. If the BTO has reason to believe the arrestee has introduced any item into his or her mouth, the 15 minute observation period shall be restarted. Also, if during the test sequence, the breath test device reports the presence of mouth alcohol, the test sequence shall end. The 15 minute observation period shall be restarted and a new test sequence shall be started. This observation period is designed to allow the dissipation of mouth alcohol.

(4) The breath test shall be valid and the results admissible in a court of law if it complies with 501 CMR 2.14.

Michigan      

People v. Boughner, 531 N.W.2d 746 (Michigan Ct. App. 1995)

Videotaping of drunk-driving arrestee during required pretest observation period did not satisfy requirement that test subject be continuously observed for 20 minutes prior to chemical test for blood-alcohol level, where test operator observed subject only for few minutes and view of video camera was at times obstructed.

Mich. Admin. Code r. 325.2655

Rule 5. (1) A procedure that is used in conjunction with evidential breath alcohol analysis shall be approved by the department and shall be in compliance with all of the following provisions:

(a) Evidential breath alcohol test instruments shall be operated only by appropriate class operators pursuant to R 325.2658(4). (b) All analyses shall be conducted using the department-approved procedures and report forms as required.

(c) Prescribed records of operation, analyses, and results shall be maintained at the instrument location as prescribed by the department, and copies shall be forwarded to the department as required.

(d) The department shall test samples from each lot of alcohol standards used in the state in conjunction with evidential breath alcohol test instruments. The department shall certify for use those lots of alcohol standards that are found to be proper in chemical composition.

(e) A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by 1 or more appropriate class operators pursuant to R 325.2658(4) before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his or her mouth, except for the mouthpiece associated with the performance of the test. The observation may be conducted by more than 1 operator working in concert. The operator need not stare continuously at the subject, but must be close enough to be aware of the person's actions and conditions. The operator may complete paperwork, enter data into the breath test instrument, or conduct other reasonable tasks during the observation period provided the subject is within the operator's field of vision. Breaks in the observation lasting only a few seconds do not invalidate the observation if the operator can reasonably determine that the subject did not smoke, regurgitate, or place anything in his or her mouth during the break in the observation.

            Minnesota

State v. Wickern, 411 N.W.2d 597 (Minnesota Ct. App. 1987)

Trial court erred in suppressing breath test results on ground that officer did not closely observe defendant during 15-minute observation period, as against defendant's corroborated contention that he had burped during period, since failure of observation does not necessarily void test but rather gives defendant argument against credibility of results upon showing that ingested or regurgitated material could have raised measured blood alcohol level.

Mississippi

Hudspeth v. State, 28 So. 3d 600 (Mississippi Ct. App. 2009), cert. denied, 27 So. 3d 404 (Miss. 2010).

Officer complied with required 20-minute observation period before administering alcohol breath test so as to support admission of results. Officer testified that he combined his observation time with prior officer's and fire chief's observation times, which totaled roughly 29 minutes, observation period did not require that same officer observe person being tested.

MISSISSIPPI CRIME LABORATORY IMPLIED CONSENT POLICIES AND PROCEDURES 1700-1799

Observation Period A period during which the person being tested has been observed to determine that he has not ingested alcohol or other fluids, regurgitated, vomited, eaten, smoked, or placed anything into his mouth in the 20 minutes immediately prior to the collection of a breath sample.

            Missouri

State v. Crowell, 560 S.W.2d 889 (Missouri Ct. App. 1978)

Where the trooper who administered the test testified, inter alia, that he had a permit from the division of health, that he did not deviate from the manufacturer's procedures, that he conducted the test in conformity with the rules of the division of health, and that he observed the motorist for consumption of alcohol and vomiting for 15 minutes, the court held that there was a sufficient foundation to warrant introduction of the breath analysis.

Vanderpool v. Director of Revenue, 226 S.W.3d 108 (Missouri Sup. Ct. 2007)

Failure of individual who administered blood alcohol test to motorist arrested for driving while intoxicated to observe motorist the requisite 15-minute period before administering such test was not sufficient to undermine the validity of blood alcohol test results in driver's license suspension proceeding, where motorist did not allege that during such 15-minute period, he smoked, vomited, or orally ingested some other material that affected the validity of the blood alcohol results. V.A.M.S. § 302.505; 19 Mo.Code of State Regulations 25–30.060.

Rogers v. Director of Revenue, 184 S.W.3d 137 (Missouri Ct. App. 2006)

The fifteen-minute period of observation required before a law enforcement officer administers a chemical test to a driver suspected of driving while intoxicated is critical to determining whether in fact an individual has driven while illegally intoxicated and insures the veracity and precision of the testing device. 19 Mo.Code of State Regulations § 30.060.

Holley v. Lohman, 977 S.W.2d 310 (Missouri Ct. App. 1998)

Record demonstrated that driver was properly observed for 15 minutes before breathalyzer test was administered, even if officer did not always observe driver during the 15 minutes, and thus suspension of driver's license based on failure of test was justified; driver testified that he did not place anything in his mouth and there was no indication that driver vomited.

Mo. Rev. Stat. § 25-30.060

19 CSR 25-30.060 Operating Procedures for Breath Analyzers

PURPOSE: This rule establishes an operational checklist (including certification by the operator) for each of the approved breath analyzers in 19 CSR 25-30.050. Prosecuting attorneys have requested that these procedures be included as a rule so they can be introduced in court to show that operators of breath analyzers have adhered strictly to the operating procedures set forth and approved by the Department of Health and Senior Services.

(1) When using Intoxilyzer, Model 5000, the procedures on the form included herein shall be performed and the form shall be completed (see form #5).

(2) When using DataMaster, the procedures on the form included herein shall be performed and the form shall be completed (see form #7).

(3) When using Alco-Sensor IV with printer, the procedures on the form included herein shall be performed and the form shall be completed (see form #8).

(4) When using DataMaster DMT, the procedures on the form incorporated within the instrument software shall be performed and the form shall be completed (see form #11 included herein for example).

(5) When using Intoxilyzer, Model 8000, the procedures on the form incorporated within the instrument software shall be performed and the form shall be completed (see form #12 included herein for example).

(6) When using Intox EC/IR II, the procedures on the form incorporated within the instrument software shall be performed and the form shall be completed (see form #13 included herein for example).

(7) The fifteen- (15-) minute observation of the subject, which is the second procedure on the forms in sections (1)-(6) of this rule, shall be done by a current Type II or Type III permit holder. The observation period is intended to ensure that any alcohol in a test subject's mouth has time to dissipate before a breath sample is taken so that mouth alcohol does not affect the accuracy of a test result. A fifteen- (15-) minute observation period is deemed to be sufficient for the dissipation of any mouth alcohol to a reasonable degree of scientific certainty.

2013 MO REG TEXT 340365 (NS)

This amendment reflects the name change to one (1) of the approved instruments, and updates the blood alcohol test report to reflect that name change as well.

19 CSR 25-30.060

19 CSR 25-30.060 Operating Procedures for Breath Analyzers. The department is amending section (4) and form #11 which follows the rule.

PURPOSE: This amendment reflects the name change to one (1) of the approved instruments, and updates the blood alcohol test report to reflect that name change as well.

(4) When using [DataMaster] Intox DMT, the procedures on the form incorporated within the instrument software shall be performed and the form shall be completed (see form #11 included herein for example).

MISSOURI DEPARTMENT OF HEALTH AND SENIOR SERVICES

BLOOD ALCOHOL TEST REPORT – INTOX DMT

FORM #11

LOCATION OF INSTRUMENT INSTRUMENT SERIAL NUMBER DATE OF TEST TIME OF TEST

SUBJECT NAME DATE OF BIRTH

SEX SUBJECT DRIVER'S LICENSE NUMBER STATE

ARRESTING OFFICER ARRESTING OFFICER 10

OPERATOR OPERATOR PERMIT PERMIT EXP DATE

OPERATIONAL CHECKLIST: INTOX DMT

□ 1. Examination of mouth conducted. If any substance is observed or indicated to be present, the substance observed or indicated must be removed prior to starting the 15 minute observation period.

□ 2. Subject observed for at least 15 minutes by _______________________. No smoking, oral intake or vomiting during this time; if vomiting occurs, start over with the 15 minute observation period.

□ 3. Assure that the power switch is ON and the screen is displaying “READY <PUSH RUN>”.

□ 4. Press the Run button on the display screen.

□ 5. Enter subject and officer information.

□ 6. When display reads “Please Blow” and gives audible beep, insert mouthpiece and take the subject's breath sample.

SUBJECT TEST RESULTS

COMMENTS

CERTIFICATION BY OPERATOR BAG

As set forth in the rules promulgated by the Department of Health and Senior Services related to the determination of blood alcohol by breath analysts, I certify that:

□ 1. There was no deviation from the procedure approved by the department.

□ 2. To the best of my knowledge the instrument was functioning properly.

□ 3. I am authorized to operate the instrument.

□ 4. No radio transmission occurred inside the room where and when this test was being conducted.

SIGNATURE OF OPERATOR DATE

WITNESS (IF ANY) DATE

            Montana

State v. Flaherty, 112 P.3d 1033 (Montana Sup. Ct. 2005)

Procedure used by police officer to obtain breath test of motorist complied with operational checklist, and, thus test results were admissible in prosecution for operating a noncommercial vehicle with a blood alcohol content (BAC) of .10 or more (DUI per se); motorist did not orally ingest any material during 15 minutes prior to test, and motorist was observed during actual testing. MCA 61–8–406; Mont. Admin.R. 23.4.212(7).

City of Missoula v. Lyons, 97 P.3d 1120 (Montana Sup. Ct. 2004)

Evidence supported finding that police officer ensured that defendant charged with driving with an alcohol concentration of.10 or more did not orally ingest any materials in the 15 minutes prior to administration of blood alcohol content test, as required to comply with operational checklist for use of breath analysis instrument; defendant was under personal observation for over 13 of the 15 minutes, while defendant was using restroom, officer stood outside restroom's door and did not hear use of restroom's drinking fountain, defendant, due to pat down, did not have anything on her person that she could have ingested, and defendant never contended that she ingested anything while in restroom. Mont. Admin.R. 23.4.212(7).

Mont. Admin. R. 23.4.212

7) Breath samples of deep lung air shall be analyzed using only the breath analysis instrumentation or PAST devices approved under this rule.

            Nebraska

DeBoer v. Nebraska Dept. of Motor Vehicles, 751 N.W.2d 651 (Nebraska Ct. App. 2008)

District court's determination that, contrary to regulation, officer who performed breath test of driver on which revocation of his license was based failed to observe driver for 15 minutes before conducting the test was supported by substantial evidence, including checklist ant test record card, which showed a 13-minute observation period, despite officer's testimony that he observed driver for the required 15 minutes and used his own watch to do so. Neb.Admin.R & Regs. tit. 177, ch. 1, § 007.02C

177 NE ADC Ch. 1, Attachment 2

ATTACHMENT 2

DATAMASTER

Checklist Technique

This checklist technique is approved and prescribed by 177 NAC 1 of the DHHS for the INFRARED ABSORPTION ANALYSIS USING THE DATAMASTER TESTING DEVICE, FOR BREATH SPECIMENS.

This analysis is on the breath specimen from: ____________________
  (Name of Person Tested)

CHECK TO SHOW COMPLETION

Prior to step 1, verify that maintenance, repair, and calibration verification have been performed by reviewing the maintenance record.

1. Observe subject for 15 minutes prior to testing. No smoking during this waiting period. Record the time observation began: __________

2. Attach a clean mouthpiece when instructed to “Please Blow”.

3. Have the subject blow into the breath tube until a sufficient sample is delivered. If the breath sample is insufficient the display panel will instruct you to “PLEASE BLOW” and will continue to do so until a proper test is completed. The testing device will terminate the test if a proper breath test has not been obtained in two minutes.

4. SUBJECT DIGITAL READING: 0. __________ of a gram of alcohol per 210 liters of breath.

5. Discard the used mouthpiece and remove the evidence ticket at completion of printing.

____________________ _______________
Permit Holder (Date)

Nevada

Beavers v. State, 851 P.2d 432 (Nevada Sup. Ct. 1993)

Breath test results were not rendered inadmissible by failure to comply with requirements of 15-minute waiting period or proper maintenance of testing device, where substantial evidence supported finding that officer waited 17 minutes after asking subject to remove chewing gum from mouth before commencing test, and where subject failed to meet burden of proof on claim that machine was not properly maintained, since state does not have to prove proper maintenance.

      New Hampshire

Jordan v. State, 561 A.2d 1078 (New Hampshire Sup. Ct. 1989)

In order to ensure accurate measurements of breath-alcohol levels, the director of the division of public health services promulgated regulations governing the administration of breath-alcohol tests. See RSA 265:85, III, V (Supp.1988); N.H. Admin. Rules, He-P 2206.01-2206.06, 2206.09. One regulation provides that before administration of a breath-alcohol test, the driver shall be observed for a period of 20 minutes to ensure the integrity of the sample. During the observation period the subject shall not place any material in their [sic] mouth, included but not limited to cigarette, lozenges, fingers, etc. Should vomiting, regurgitation, or belching occur or any external material enter the mouth of the person to be examined, an additional 20 minute wait period shall occur before sampling.

 

N.H.Admin. Rules, He-P 2206.02(a)

Failure to comply with the regulations renders test results inadmissible in any proceeding against the driver. RSA 265:85, IV (Supp.1988). A driver who intentionally prevents compliance with He-P 2206.02(a) chooses not to take the test as much as a driver who explicitly refuses the test.

            New Jersey

State v. Filson, 976 A.2d 460 (New Jersey Super. Ct. Law Div. 2009)

Officer did not observe defendant while in the patrol car for purposes of the twenty-minute observational requirement, which was a precondition to admitting breath test results in driving under the influence (DUI) case, and consequently, the State had to satisfy the twenty-minute observation requirement by proving that officer observed defendant for twenty minutes in the station house; officer did not specifically state that he observed defendant during the ride back to the station house, nor did officer provide details about his own attentiveness, defendant's placement in the vehicle, and the absence of road-related distractions.

The State did not meet its burden to prove, clearly and convincingly, that officer continuously observed defendant for twenty minutes in station house before administering breath test, and therefore, breath test results would be excluded from evidence in driving under the influence (DUI) case; the observation period was interrupted when officer left defendant unattended so officer could remove defendant's cell phone from the room, and although officer asserted that he observed defendant for twenty consecutive minutes, officer did not claim he looked at a particular clock to mark the time.

EXCEPTIONALLY GOOD CASE FOR THE DEFENSE.

State v. Filson, 976 A.2d 460 (New Jersey Super. Ct. Law Div. 2009)

The Supreme Court thus adopted the protocol that an operator or other person associated with the operator must observe the testing subject for twenty minutes before starting the test, and then during the testing, must assure that the subject does not burp or regurgitate or otherwise contaminate the breath sample.

Operators must wait twenty minutes before collecting a sample to avoid overestimated readings due to residual effects of mouth alcohol. The software is programmed to prohibit operation of the device before the passage of twenty minutes from the time entered as the time of the arrest. Moreover, the operator must observe the test subject for the required twenty-minute period of time to ensure that no alcohol has entered the person's mouth while he or she is awaiting the start of the testing sequence. In addition, if the arrestee swallows anything or regurgitates, or if the operator notices chewing gum or tobacco in the person's mouth, the operator is required to begin counting the twenty-minute period anew.

            New Mexico

State v. Willie, 212 P.3d 369 (New Mexico Sup. Ct. 2009)

Police officer who administered breath alcohol test (BAT) to defendant was not required to continuously observe defendant for the entire 20-minute deprivation period established by State Laboratory Division (SLD) regulation in order to comply with the regulation. Where officer handcuffed defendant at the traffic stop, was with defendant for at least 20 minutes prior to the test while he drove defendant to the jail and took defendant to detention center where the BAT was administered, and thus officer was in a position to state that defendant did not eat, drink, or smoke either while he was in the patrol car or at the detention center.

State v. Gardner, 967 P.2d 465 (New Mexico Ct. App. 1998).

We hold that the test results were improperly admitted into evidence due to the violation, by as much as five minutes, of the twenty-minute continuous observation period. We review rulings upon the admission or exclusion of evidence under an abuse of discretion standard, see State v. Hoeffel, 112 N.M. 358, 361, 815 P.2d 654, 657 (Ct.App.1991), but when there is no evidence that necessary foundational requirements are met, an abuse of discretion occurs. Our decision is based first and foremost on the statutory structure of the DWI statutes which, since the 1993 amendments, expressly provide that blood or breath alcohol test results may be introduced into evidence if they are performed in accordance with state regulations; these regulations require a twenty-minute observation period prior to collecting a breath sample. Our decision is also based, in part, on (1) distinguishing a prior case decided before the 1993 amendments to the DWI laws; (2) distinguishing arguably similar cases which, in fact, involved different circumstances; and (3) distinguishing a recent case in which we applied the doctrine of substantial compliance. We review each of these matters in turn. We additionally hold that the error was not harmless.

7 N.M.Admin.Code 33.2.12(B)(1)(2001).

I. Statutory Structure

Department of Health Regulation 12.1.1 states:

Two breath samples shall be collected and/or analyzed by certified Operators or Key Operators only, and shall be end expiratory in composition. Breath shall be collected only after the subject has been under continuous observation for at least 20 minutes prior to collection of the first breath sample. If during this time the subject regurgitates or introduces any foreign substance suspected of containing alcohol into his mouth or nose, another 20 minutes observation period must be initiated. The two breath samples shall be taken not more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the subject declines or is physically incapable of consent for the second and/or third samples, it shall be permissible to collect and/or analyze fewer samples.

7 NMAC 33.2.12.12.2.1. This regulation was promulgated pursuant to the authority of NMSA 1978, § 24-1-22 (1981), which allows the “scientific laboratory division of the health and environment department [department of health]” to promulgate and approve methods of testing people under the influence of alcohol or drugs and to establish criteria for testing methodology and collection of breath samples.

N.M. Admin. Code § 7.33.2

B. Breath sample collection.

(1) Samples of the subject's breath shall be collected and analyzed pursuant to the procedures prescribed by SLD and employing only SLD approved equipment and certified instruments.

(2) Breath samples shall be collected and analyzed by certified operators or certified key operators and shall be end expiratory in composition. The breath test operator should make a good faith attempt to collect and analyze at least two samples of breath. Breath shall be collected only after the certified operator or certified key operator has ascertained that the subject has not had anything to eat, drink or smoke for at least 20 minutes prior to collection of the first breath sample. If during this time the subject eats, drinks or smokes anything, another 20 minute deprivation period must be initiated. The two breath samples shall be taken not more than 15 minutes apart. If the difference in the results of the two samples exceeds 0.02 grams per 210 liters (BrAC), a third sample of breath or blood shall be collected and analyzed. If the subject declines or is physically incapable of consent for the second or third samples, it shall be permissible to analyze fewer samples.

      New York

People v. Lebrecht, 823 N.Y.S.2d 824 (New York Sup. Ct. 2006)

Results of test of blood alcohol content (BAC) of driver's blood were admissible, in nonjury trial which resulted in convictions of driving while impaired and failure to use designated lane, notwithstanding that officer who administered test may not have maintained continuous observation of driver for 15 minutes prior to the test during the few minutes his attention was devoted to preparing the BAC machine for testing; proof of “continuous observation” was not predicate condition for admission of test results and there was no evidence that officer failed to observe any event that would have undermined accuracy of test results.

People v McDonough (1987, 4th Dept) 132 App Div 2d 997, 518 NYS2d 524, app den 70 NY2d 801, 522 NYS2d 119, 516 NE2d 1232

N.Y. U.C.C. Law 59.5

Section 59.5. Breath analysis; techniques and methods

The following breath analysis techniques and methods shall be a component of breath analysis instrument operator training provided by training agencies and shall be used by operators performing breath analysis for evidentiary purposes:

(a) A breath sample shall be collected at the direction and to the satisfaction of a police officer and shall be analyzed with breath analysis instruments meeting the criteria set forth in section 59.4 of this Part.

(b) The subject shall be observed for at least 15 minutes prior to the collection of the breath sample, during which period the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked, or have placed anything in his/her mouth; if the subject should regurgitate, vomit, smoke or place anything in his/her mouth, an additional 15- minute waiting period shall be required.

North Carolina

State v. Lockwood, 336 S.E.2d 678 (North Carolina Ct. App. 1985).

The Commission for Health Services provided in 10 N.C.Admin.Code 7B . 0102 (18) that the observation period prior to the collection of a breath sample is fifteen minutes. The procedure for administering a test with the Model 2000 Breathalyzer after the observation period is set out in 10 N.C.Admin.Code 7B .0346. This regulation instructs the operator to collect the first breath sample when “blow sample” appears on the machine and to collect the second sample when these words reappear, indicating that the machine is ready for a second analysis. The regulation further provides that if the alcohol concentration of these two samples differs by more than .02, a third or subsequent test shall be administered “as soon as feasible” by repeating the enumerated steps.

G.S. 20-139.1 provides, in pertinent part, as follows:

(b3) Sequential Breath Tests Required.-By January 1, 1985, the regulations of the Commission for Health Services governing the administration of chemical analyses of the breath must require the testing of at least duplicate sequential breath samples. Those regulations must provide:

(1) A specification as to the minimum observation period before collection of the first breath sample and the time requirements as to collection of second and subsequent samples.

North Dakota

State v. Puhr, 316 N.W.2d 75 (North Dakota Sup. Ct. 1982)

Breathalyzer test results were properly admitted where, although approved method required that “operator ascertain that the subject has had nothing to eat, drink or smoke within twenty minutes prior to the collection of the breath sample” and defendant was under observation for a maximum of 18 minutes prior to the test, state toxicologist testified that 20-minute requirement was general guideline and that test conducted 10 to 12 minutes after subject had something to eat, drink or smoke would be valid.

Olson v. North Dakota Dept. of Transp, 831 N.W.2d 742 (North Dakota 2013).

Evidence was sufficient to show that, prior to administering breath test, arresting police officer waited 20 minutes after chewing tobacco was removed from motorist's mouth, as required for test results to be admissible in license-suspension proceedings; test had been initiated at 12:30 a.m., and officer testified that initial portable test had began at 12:17 a.m., and that field sobriety tests had begun nine or ten minutes before the portable test.

N.D Cent. Code § 39-20-05

N.D Cent. Code § 39-20-07

Ohio

State v. Householder, 908 N.E.2d 987 (Ohio Ct. App. 2009)

Police officer's failure to wait an additional 20 minutes after defendant, who had been arrested for operating a motor vehicle while under the influence of alcohol, received an “invalid sample” on his first alcohol breath test before conducting second test did not invalidate the second test or warrant suppression of the test results, even though memorandum issued by the Ohio Department of Health recommended a second 20 minute observation period following an invalid sample; testimony from officer established that the first invalid sample was the result of defendant discontinuing his blowing pattern, rather than as a result of any mouth alcohol. R.C. § 4511.19(D).

State v. Brown, 359 N.E.2d 706 (Ohio Ct. App. 1975)

Where the only issue, as to the method or regulation used in administering a breathalyzer test, raised by cross-examination was whether the requirements of a checklist that the motorist be observed for a period of 20 minutes was complied with by the operator, the court held that where the operator testified that he was familiar with all the regulations and methods approved by the state director of health regarding the breathalyzer and that he had conducted the test in accordance with those regulations and methods, failure to observe the motorist for every minute of the 20-minute period would go to the weight of the evidence rather than its admissibility where the motorist offered no evidence tending to establish that he ingested any foreign matter during the period in which he was unobserved.

Ohio Rev. Code § 3701-53-02

(C) Breath samples of deep lung (alveolar) air shall be analyzed for purposes of determining whether a person has a prohibited breath alcohol concentration with instruments approved under paragraphs (A) and (B) of this rule.

(D) Breath samples using instruments listed under paragraphs (A)(1), (A)(2) and (B) of this rule shall be analyzed according to the operational checklist for the instrument being used and checklist forms recording the results of subject tests shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. The results shall be recorded on forms prescribed by the director of health.

(E) Breath samples using the instrument listed under paragraph (A)(3) of this rule shall be analyzed according to the instrument display for the instrument being used. The results of subject tests shall be retained in a manner prescribed by the director of health and shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.

Oklahoma

Wren v. State, 556 P2d 1308 (Oklahoma Crim. App. 1976)

Sufficient compliance with the rules and regulations pertaining to breath alcohol analysis methods and techniques as to the observation period, where evidence showed that motorist, prior to taking a breathalyzer test, was under an officer's observation for approximately 50 minutes prior to the test, during which time the motorist did not put anything in his mouth or smoke, and was under another officer's observation for approximately 20 to 25 minutes prior to the test and did not drink, put anything in his mouth, or smoke during that period.

Ward v. State ex rel. Dept. of Public Safety, 98 P.3d 362 (Oklahoma Ct. App. 2004)

In driver's license revocation case, breath test of motorist was not tainted by a deprivation period of inadequate duration; trooper testified that the enhanced simulator used to obtain breath test did not accurately report the actual “deprivation period” observed by him, that he began motorist's deprivation period at 10:40 p.m., and that, according to the breath-alcohol analysis report printed by the enhanced simulator, he administered the breath test at 11:02 p.m., twenty-two minutes later.

Okla. Admin. Code 40:30-1-3

(c) Analysis. Each such analysis shall include the following steps:

(1) Observation of the subject whose breath is to be tested sufficient to determine that, for a period of at least fifteen (15) minutes prior to the collection of the first breath specimen, and continuing through the second breath specimen, the subject shall not have ingested alcohol in any form or any other substance, vomited, or smoked. Such observation shall be carried out by the breath-alcohol analysis Operator or Specialist or by any other qualified person.

            Oregon

State v. Tynon, 955 P.2d 250 (Oregon Ct. App. 1998)

The court noted that the arresting officer testified that he requested the motorist to refrain from smoking or putting anything in his mouth before completion of the breathalyzer test; that for approximately 17 minutes prior to beginning the examination he continuously observed the motorist, except for momentary breaks while a videotape machine was turned on and off and while the breathalyzer checklist was prepared; and that the officer testified he did not see the motorist drink, smoke, eat, take medication, or regurgitate during that period. Pre-test observation rule for administration of Intoxilyzer test requires that operator of test form subjective belief to degree of “certainty” that test subject has not engaged in any of acts described by rule, such as regurgitation and vomiting, during observation period; second, that belief must be reasonable under circumstances. Or. Admin. R. 257-030-0070(2).

 

State v. McVay, 731 P.2d 466 (Oregon Ct. App. 1987)

Trial court in prosecution for driving under influence of alcohol properly suppressed breath test results, where evidence established that certified testing officer had told uncertified jailer to make sure than defendant did not put anything in his mouth during 15-minute observation period, and asked jailer only that question after period, since certified officer must ensure that whole panoply of disqualifying acts (eating, drinking, smoking, regurgitation, etc.) was precluded prior to test.

State v. Allen, 702 P.2d 1118 (Oregon Ct. App. 1985)

State statute did not require that operator make certain that during 15 minute period before administering test, arrested person had nothing in mouth that would cause incorrect reading of blood alcohol level, nor that dentures worn by arrested person be removed, but required only that person arrested not take anything by mouth, vomit, or regurgitate liquid from his stomach into his mouth.

Or. Admin. R. § 257-030-0070

The following method of performing Chemical Analysis of a subject's breath is approved for the Intoxilyzer 5000:

(1) Test Identification: A check list containing an outline of the approved procedures shall be used and completed by all operators of this instrument.

(2) Pre-Test Requirement:

(a) The operator is certain that the subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from the stomach into mouth, for at least fifteen minutes before taking the test;

(b) There is no requirement that the operator be the person who makes observation of the subject. The person performing the Pre-Test Requirement (observation period) need not possess a permit to test the alcoholic content of blood.

(c) There is no requirement that the subject rinse the mouth or remove dentures.

            Pennsylvania[AM1] 

Code § 77.24

Observation. The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the person, during which time the person may not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test.

Rhode Island

State v. St. Jean, 554 A.2d 206 (Rhode Island Sup. Ct. 1989)

The intent of the regulation has been complied with where officer put suspect into locked police car and although was not observing him for 30 seconds, he was able to observe him during transport to the jail and through the entire span of the blood-alcohol test. In considering this continuity contention, the trial justice conceded that even though the regulation was not followed to the letter, its spirit had not been violated. The obvious purpose of the regulation is to prevent defendants from ingesting substances that could affect the outcome of their blood-alcohol-testing procedures. During the thirty seconds when St. Jean was not supervised, he was handcuffed and locked in the back seat of a police cruiser. Nobody could get into or out of the cruiser without using a key. Given these facts, the intent of the regulation has been complied with.

South Carolina

S.C. Code Ann. § 56-5-2953

      South Dakota

      Tennessee

State v. Greene, 343 S.W.3d 101 (Tennessee Crim. App. 2010), appeal denied, (Mar. 9, 2011).

State established by a preponderance of the evidence that defendant's mouth was free of foreign matter for a period of 20 minutes prior to his taking breath-alcohol test; officer testified that he observed defendant for 21 minutes before the test without interruption and that defendant did not eat, drink, chew, or smoke anything nor did he regurgitate or belch during that time, contrary to defendant's assertion that he was chewing gum.

State v. Brooks, 277 S.W.3d 407 (Tennessee Crim. App. 2008), appeal dismissed, (July 21, 2008).

Evidence was sufficient to establish that defendant was observed for 20-minute period prior to his breath test, as required for results of test to be admissible in prosecution for driving under the influence (DUI); record contained a dispatch call indicating time officer was dispatched to perform test, and a printed receipt from breath testing instrument demonstrating that test began more than 20 minutes after dispatch.

State v. McCaslin, 894 S.W.2d 310 (Tennessee Crim. App. 1994)

State did not carry its burden to establish that arresting officer observed DUI arrestee for required 20 minutes, where officer observed arrestee for only 16 minutes after transporting him in patrol car, and officer admitted that he had not maintained constant observation of arrestee in back seat of patrol car.

Texas

Garcia v. State, 874 S.W.2d 688 (Texas Ct. App. 1993)

Trial court in prosecution for driving under influence of alcohol erred in refusing to instruct that jury must find that chemical test for blood-alcohol level was conducted according to mandatory regulations, where testing officer's testimony raised issue of fact whether officer had observed driver for full 15-minute pretest observation period.

State v. Kost 785 S.W.2d 936 (Texas Ct. App. 1990), petition for discretionary review ref (May 23, 1990)

Trial court in prosecution for driving under influence of alcohol properly suppressed breath test results, where testing/arresting officer's testimony that he was continuously in arrestee's presence for more than 15 minutes prior to breath test, much of which was involved in transporting arrestee from arrest scene to booking facility, failed to satisfy requirement that officer continuously observe arrestee for 15 minutes before testing.

37 TEX.ADMIN.CODE § 19.3 (West 1989), as follows:

(a) All breath alcohol testing techniques, methods, and programs to be used for evidentiary purposes must have the approval of and be certified by the scientific director.

(b) …

(c) All breath alcohol testing techniques, in order to be approved, shall meet, but not be limited to the following:

(1) continuous observation of the subject for a minimum period of time as set by the scientific director prior to the collection of the breath specimen, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, smoked, or introduced any substances into the mouth;

Utah

State v. Relyea, 288 P.3d 278 (Utah Ct. App. 2012).

Arresting officer had reasonable belief that defendant's mouth was clear for entire observation period at police station and thus, results of breath test were reliable in prosecution for driving under influence of alcohol; defendant was in arresting officer's presence and remained handcuffed at station within five feet of officer throughout entire sixteen-minute period prior to administration of test, defendant had no opportunity to ingest or regurgitate anything during that time, and officer was simultaneously able to focus on setting up test machine and to observe defendant both visually and aurally during entire period without distractions. West's U.C.A. § 41–6a–502 et seq.

Vermont

State v. Pudvah, 2002-276, 2003 WL 25745983 (Vermont Ct. App. 2003)

[A]dherence to the fifteen-minute observation period is critical to ensuring the absence of mouth alcohol and thus the reliability of the samples. See 2003 VT, at § 10. We concluded that, given the statutory requirements for rulemaking in 23 V.S.A. § 1203(d), the State can demonstrate “all that is required” for the admissibility of test results, irrespective of adherence to the manual's observation period. Id. at § 15. Accordingly, defendants may present testimony, including expert testimony, suggesting to the fact-finder that the processing officer's failure to observe them for an uninterrupted fifteen-minute period as established by the training manual casts doubt on the reliability of the test results, but they may not use such testimony to prevent the State from admitting the test results for the fact-finder's consideration. See Rolfe, 166 Vt. at 12-14, 686 A.2d 949 (presumption in 23 V .S.A. § 1205(g)(4), now § 1205(h)(4), arises only after test result is admitted; standard for admissibility remains that in § 1203(d)).

Virginia

Newman v. Com., 2009 WL 2431289 (Virginia Ct. App. Aug. 11, 2009)

Here, the evidence established that the breath test was administered in compliance with the twenty-minute observation period required by Code § 18.2–268.9. The attestation clause that was part of the certificate of analysis admitted into evidence stated that appellant's breath test “was conducted in accordance with [DFS] specifications,” one of which provides for the twenty-minute period of observation. Additionally, the testimony of Berghoffer, who administered the breath test, established that Sergeant Munday observed appellant for the required twenty minutes prior to the attempted test on the first Intoxilyzer before she was immediately moved to the second Intoxilyzer only a few feet away. Accordingly, we conclude the trial court did not err by admitting the certificate of analysis into evidence.

6 Va. Admin. Code § 40-20-110

The department shall approve such methods of performing breath tests as are demonstrated to the satisfaction of the department to produce accurate and reliable determinations in a reasonable, convenient and effective manner. The department approves the following breath test methods and procedures:

1. All breath test devices shall be operated in accordance with those sections of the instructional manual published by the department that are applicable to the particular breath test device. Licensees shall follow any additional instructions or modifications of instructions published by the department in supplements to the foregoing instructional manual.

2. The person to be tested shall be observed for at least 20 minutes prior to collection of the breath specimen, during which period the person must not have ingested fluids, regurgitated, vomited, eaten, or smoked. Should any of these actions occur, an additional 20-minute observation period must be performed.

Washington

State v. Baker, 355 P.2d 806 (Washington Sup. Ct. 1960)

Test suppressed based upon 14 minute observation period.

West Virginia

Wisconsin

Wyoming

Peterson v. Wyoming Dept. of Transp., 158 P.3d 706 (Wyoming Sup. Ct. 2007).

Results of breath tests administered to motorist following his arrest for driving while intoxicated were not required to be stricken in driver's license suspension proceeding due to five-minute gap between the requisite fifteen-minute observation period and actual administration of the test by arresting officer; officer complied with required standards and procedures, there was no indication from the officer's report that he stopped observing motorist during the time preceding his breath test, and while officer may not have stared at motorist the entire time, this did not render his compliance with the mandatory observation period invalid. West's Wyo.Stat.Ann. § 31–6–105(a).

Wyoming Department of Health Rules and Regulations:

Section 1. Procedural controls.

(a) Analytical procedures for breath alcohol analysis should include the following controls in conjunction with the testing of each subject:

(i) Subject must be observed for a minimum of fifteen (15) minutes prior to testing to prevent residual mouth alcohol. All foreign material (except dentures) must be removed from the mouth at the start of observation period and subject must not be allowed to smoke, eat, drink, or place anything in their oral cavity etc. If the subject vomits or regurgitates, the observation period must be restarted after rinsing the mouth with water. A dry burp or belch will not affect the test; therefore, the observation time can continue.

Federal Jurisdiction

In prosecution for operating a motor vehicle while under influence of alcohol, government met requirements for authentication under rule of evidence of report of results of breath test of defendant's blood alcohol concentration; park ranger who conducted defendant's test testified that he received training in use of breath test machine and knew from that training that machine performed a diagnostic function prior to taking a breath sample to ensure there was no alcohol in the air, that he learned from his training that if machine had not been certified as accurate, it would have produced an error reading, and that he observed defendant for mandatory 20-minute period, then took a breath sample after machine completed its diagnostic phase.

U.S. v. Foster, 2011 WL 5403203 (W.D. Va. 2011).

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