How a Failed Observation Period Can Be a Key Defense in Your DUI Case
One of the most critical aspects of DUI cases in Florida is the breath test, which law enforcement uses to measure your blood alcohol concentration (BAC). However, many people don't realize that strict protocols must be followed when administering these tests, and one of the most significant requirements is the observation period. If law enforcement fails to observe you for the required period before administering the breath test, this could be a powerful defense against your DUI charge.
As an experienced Florida DUI defense attorney, I've seen how the failure to comply with this observation period can lead to breath test results being called into question—or even thrown out entirely. Understanding how this defense works and why it matters is crucial if you're facing DUI charges.
The 20-Minute Observation Period Requirement in Florida
Under Florida Administrative Code Rule 11D-8.007(3), law enforcement officers are required to observe a DUI suspect continuously for 20 minutes before administering a breath test. This observation period is meant to ensure that the individual does not consume any food, drink, vomit, regurgitate, or place any foreign object in their mouth that could affect the accuracy of the breath test results.
The rationale behind this requirement is simple: if any foreign substance, alcohol, or bodily fluids are present in the mouth, they could cause the breath test to register a falsely elevated BAC reading. The 20-minute observation period acts as a safeguard to ensure the results are as accurate as possible.
Legal Implications of Failing to Observe the Required Period
If the arresting officer fails to follow the 20-minute observation requirement, the breath test results may be challenged in court. When officers do not strictly adhere to this protocol, the reliability of the test is called into question. This can serve as a powerful defense in your DUI case, as it could lead to the breath test evidence being suppressed or deemed inadmissible.
When breath test evidence is suppressed, it means that the prosecution cannot use it against you in court. Since BAC test results are often a cornerstone of the prosecution's case in DUI charges, their absence can significantly weaken the case against you.
How the Observation Period Defense Can Impact Your DUI Case
The failure to comply with the observation period can lead to several outcomes, including:
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Suppression of Breath Test Evidence: If it's proven that the officer did not observe you for the required 20 minutes, your attorney can file a motion to suppress the breath test results. Without this critical evidence, the prosecution may have difficulty proving that your BAC was above the legal limit.
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Reduction of Charges: With weakened evidence, prosecutors may be more willing to negotiate a plea deal, reducing your charges to a less severe offense, such as reckless driving.
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Dismissal of Charges: In some cases, if the breath test is the primary evidence against you and it’s deemed unreliable or inadmissible, the DUI charges could be dismissed entirely.
Common Scenarios Where the Observation Period is Violated
There are various ways the 20-minute observation period can be compromised. Some common violations include:
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The officer being distracted or not paying full attention: If the officer is handling paperwork, talking on the phone, or attending to another task during the observation period, they may not be giving you their undivided attention, which is a violation of the requirement.
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Failure to maintain a clear view: The officer must have an unobstructed view of you for the entire 20-minute period. If you’re placed in the back of a patrol car or a separate room, and the officer cannot see you continuously, the observation period is not properly maintained.
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Use of other equipment or distractions: Officers sometimes operate the breath testing device during the observation period, which can divert their attention away from the suspect, thus failing to meet the requirement.
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Inaccurate documentation: If the officer fails to accurately document the start and end times of the observation period or cannot provide clear evidence that they observed you for the full 20 minutes, this could cast doubt on the validity of the breath test.
How Hiring a Private Attorney Can Make a Difference
When you’re facing DUI charges, having an experienced private attorney on your side can make all the difference, especially in cases involving the observation period defense. Here’s how a private attorney can help:
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Thorough Investigation: A private attorney will carefully review all evidence, including the arresting officer’s report, video footage, and any other documentation related to the observation period. If there are discrepancies or gaps in the officer’s attention during the observation period, your attorney will identify them and use them to challenge the breath test results.
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Knowledge of DUI Procedures: DUI defense is a specialized area of law, and experienced private attorneys understand the nuances of breath testing procedures and protocols. They know where to look for errors and can effectively argue how these mistakes undermine the prosecution’s case.
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Access to Experts: Private attorneys often work with expert witnesses who can testify about the importance of the observation period and how a failure to comply with this requirement can impact the reliability of breath test results. This testimony can be persuasive in court and may lead to the suppression of evidence.
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Negotiating Skills: A private attorney with DUI defense experience can negotiate with the prosecution to seek reduced charges or alternative penalties, especially if the evidence against you is compromised by an improper observation period.
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Protecting Your Record: One of the most significant benefits of hiring a private attorney is their ability to fight to keep your criminal record clean. A DUI conviction can have long-lasting consequences, affecting your employment, insurance rates, and personal life. An experienced attorney will work to protect your record and minimize the impact of the charges.
Additional Legal Considerations
It's important to note that the observation period is not merely a technicality—it’s a legal safeguard designed to ensure that DUI tests are accurate and fair. Florida courts have recognized the importance of this observation period, and judges are often willing to suppress breath test results if it can be demonstrated that the observation requirement was not met.
Furthermore, the burden of proof is on the prosecution to demonstrate that the observation period was followed correctly. This means that if there is any doubt about whether the observation period was properly conducted, the benefit of the doubt often falls to the defendant.
Potential Consequences of a DUI Conviction
If you're convicted of a DUI, especially one involving a failed observation period, the consequences can be severe. They may include:
- Fines ranging from $500 to $1,000 for a first offense (higher for subsequent offenses)
- Jail time ranging from six months for a first offense to up to five years for repeat offenses
- Mandatory DUI school and substance abuse treatment
- Community service requirements
- License suspension for up to one year for a first offense
- Installation of an ignition interlock device
Given these potential penalties, it's clear why challenging a failed observation period is a critical defense strategy. An experienced private attorney will help ensure that every possible defense is explored to protect your rights and your future.
Failure to Observe the 20-Minute Period FAQs
How do I prove that the officer failed to observe the 20-minute period?
Proving a failure to observe the 20-minute period can involve reviewing police reports, video footage, and any notes taken by law enforcement. An experienced attorney can subpoena records, request bodycam footage, and cross-examine the officer to reveal inconsistencies or lapses in the observation period.
Can the breath test results be completely dismissed if the observation period wasn't followed?
Yes, if it can be shown that the 20-minute observation period was not followed, your attorney can file a motion to suppress the breath test results. If the judge agrees that the observation period was not adhered to, the breath test results can be excluded from evidence, which often weakens the prosecution's case.
What if I vomited or burped during the observation period?
If you vomited, burped, or regurgitated during the observation period, this can affect the accuracy of the breath test results. The officer should restart the 20-minute observation period in such instances. Failure to do so may render the test results invalid, and your attorney can use this as a defense to challenge the evidence.
Does the observation period defense apply to blood tests as well?
No, the 20-minute observation period specifically applies to breath tests. Blood tests have their own set of protocols and procedures that must be followed. However, if law enforcement did not follow proper procedures for a blood test, an experienced attorney can challenge those results in a similar manner.
Is it possible for my DUI charge to be reduced to reckless driving if the observation period wasn’t followed?
Yes, if the breath test evidence is compromised due to an improper observation period, your attorney may be able to negotiate with the prosecution to reduce your DUI charge to reckless driving. This can result in lighter penalties and may help you avoid a DUI conviction on your record.
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If you or someone you know is facing DUI charges in Florida and you suspect that the required observation period was not properly followed, it's time to take action. You deserve to have a defense that fully protects your rights and challenges the evidence against you. Contact Musca Law 24/7/365 at 1-888-484-5057 for your FREE consultation. Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged in Florida with a criminal or traffic offense. They serve all 67 counties in Florida and are available 24/7/365 at 1-888-484-5057 for your FREE consultation.