The 15-Minute Observation Period
Shortcuts taken by the police in administering a breath test for a DUI in Merced can hurt the prosecution at trial.
Title 17, Cal. C. of Regs., §1219.3, requires:
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.
The language stating a requirement of “continuous observation for at least fifteen minutes” is not entirely clear in its meaning. Your defense expert will testify at the trial for a DUI in Merced that continuous observation means just that—the subject must be looked at, continuously, for 15 minutes prior to the test, and that this is necessary to prevent mouth and stomach alcohol from interfering with the results.
But police often count the time they spend driving to the police station or jail, where the breath machine is located, as part of the observation time. It is up to the jury whether or not this sort of conduct meets the requirements of §1219.3. Prosecutors and their witnesses will contend that the Title 17’s 15-minute requirement may be satisfied with the combined observation of multiple officers, Taxara v. Gutierrez (2003) 114 Cal.App.4th 945, that an officer making the observation need not be qualified to perform the breath test itself, Hernandez v. Guitierrez (2003) 114 Cal.App.4th 168, and that the requirement may be satisfied with senses other than the eyes, Manriquez v. Gourley (2003) 105 Cal.App.4th 1227.
So it is useful for your Merced DUI lawyer as part of his cross-examination to ask the officer if he knows why he must observe the defendant for 15 minutes prior to administering a breath test. The officer will probably say he does notknow why, since police are trained to deny all knowledge how the breath test machine works.
After your defense expert tells the jury why the observation period is essential to an accurate test, your Merced DUI lawyer can argue to the jury that the officer’s idea of observation was formulated without knowing why he was supposed to have observed the defendant for 15 minutes, so it is easy to see why he is mistaken about how to do that properly.
Your Merced DUI lawyer can use the red light example. People do not run red lights because they know you can get killed. Sure, the law also requires you stop at red lights, but that is not usually the only reason people stop at them. Drivers who know why it is necessary to stop and they do it every time because it is dangerous not to. Imagine how dangerous the roads would be if people did not know why they had to stop at red lights. They would just slow down a little bit and breeze on through if it looked clear.
The officer must know why a 15-minute continuous observation period is essential to a valid test before his or her understanding of the meaning of the requirement has any credibility.
I can help with a DUI in Merced or other Northern California regions
DUI cases in Merced can be tough to negotiate favorable plea bargains for, or even win at trial, but an experienced Merced DUI lawyer can make a difference in the outcome.
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Jeffrey A. Tenenbaum