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  • Writer's pictureAttorney Joseph Soler

What is the 20 minute observation period in a DUI Case?

A police officer must observe a person for at least 20 minutes prior to administering a DUI breath test in order to ensure that the person has not taken anything by mouth or regurgitated. This is because alcohol or another foreign substance in the mouth can result in a false breath test reading.

The state must prove that there was substantial compliance

The state has the burden to prove that the observation period was substantially complied with. If the 20 Minute observation period was not substantially complied with it may result in the breath test reading being suppressed. If the breath test is suppressed, the prosecutor will not be able to use it in court as evidence against the defendant and may have difficulty proving the DUI.

What is substantial compliance?

The defendant must be observed for the entire 20 minutes. If there is a period of time (even a few minutes) were the officer left the room or was not observing the defendant, the judge might find that there was not substantial compliance.

However, courts have held that continuous face-to-face observation for twenty minutes is not required to achieve substantial compliance and minor deviations in compliance will not render the test results invalid. Thus, a breath test technician is not required to stare fixedly at the defendant for the entire observation period to achieve substantial compliance.

Is it my word against the breath test technician?

If you hire us to fight your DUI charge we can usually order the jail video that may include (if you were arrested in Sarasota) the 20 minute observation period. We will likely be able to determine if it was complied with after speaking with you and watching the video. Be aware that the jail video is recorded over quickly. Be sure to contact us soon after your arrest so we can be sure to order the video before the jail records over it.

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