Many are unaware of a small item in California’s DUI laws regarding the way breathalyzer tests may be conducted. Here it is: “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.”
That’s right. A police officer must observe you – continuously – for at least fifteen minutes prior to conducting a legally valid breathalyzer test. Ostensibly, this is to ensure that you aren’t hiccupping, burping, or belching; any of these would produce a false reading. If you’re charged with DUI in southern California on the basis of a breath sample, and you don’t believe you were observed for fifteen full minutes, talk at once with an experienced Orange County DUI defense attorney. While nothing can ever be guaranteed in a criminal case, it’s possible that a good DUI attorney can have your charged reduced or tossed out entirely if proper procedures were not followed when you were arrested.
Many police officers count the time they were giving you a field sobriety test and the time spent transporting you as part of the fifteen minutes of observation, but the truth is, you aren’t really being “observed” by someone who’s driving or filling out forms. Trace amounts of alcohol produced by hiccupping, burping, or belching can easily throw off the results of a breath test, so a 15-minute period of observation is imperative for accuracy. Should your case go to trial, a jury will decide if you were arrested in compliance with legal arrest procedures. In many cases, a good defense lawyer can show a jury why they should “reasonably” doubt breathalyzer test results. If you face a DUI charge in southern California, protect your future and do the right thing. Consult at once with an experienced Orange County DUI defense attorney.