It is likely common knowledge that if you are pulled over and arrested for drunk driving, one of the ways the police may try to prove the charges against you is by making you take a breathalyzer test. The breathalyzer test is meant to measure your Blood Alcohol Content (BAC), and the legal limit for driving in New Jersey is under .08%
What many drivers do not realize, however, is that there are two potential breathalyzer tests that a police officer may use during a drunk driving investigation and arrest: the roadside breath test and a breathalyzer taken back at the police station. The roadside breath test is sometimes also called a portable breath test (PBT), and it is usually provided on a small handheld device that looks like an inhaler you blow into. It is not as accurate as the station test. For that reason, the PBT is only used to get an estimate of BAC and used to establish that the police officer has probable cause to conduct an official breathalyzer test at the police station. The results of the PBT are not admissible in court to prove drunk driving.
There’s another rule that many people do not know about. Once a drunk driving suspect is brought back to the police station, the police still cannot immediately administer the official breathalyzer test on the Alcotest 7110 machine.
20-Minute Observation or Waiting Period
According to the Supreme Court in State v. Chun, operators of the Alcotest 7110 machine must wait at least 20 minutes before collecting a sample from a person who has been arrested in order to avoid overestimating the readings due to the possibility of residual effects of alcohol in the mouth. In fact, the breathalyzer machine is programmed to prohibit the operation of the device before 20 minutes has passed from the time entered as the time of arrest.
During this time, the DUI/DWI suspect must be watched, uninterrupted, during this waiting time to make sure that no alcohol has entered the person’s mouth while he or she was waiting for the start of the testing procedure. According to another case, Romano v. Kimmelman, the government has the burden of proving that they adhered to this 20-minute observation period requirement. Additionally, if the person swallows anything or throws up or the police officer notices chewing gum or tobacco or any other foreign objects in the person’s mouth, the machine operator is required to start over the 20-minute waiting period.
Actual Observation Requirement
In order for the waiting period to be legally valid, police officers are trained that drunk driving suspect must be observed uninterrupted for 20 minutes. It is not enough that the person under arrest be in police custody, such as in the back of the police car in handcuffs, for that period of time. The proper procedure requires that the person actually be watched by the Alcotest machine operator for the entire period of time in order to avoid taking steps that could conceivably contaminate the breath sample.
Similarly, the police officer’s observation must be of the sort that makes it possible for the police officer to detect if contamination occurs. If the police officer looks away, he must be close enough to detect contamination by smelling it or hearing it. An officer who rides alone in the police vehicle with the DUI suspect must be able to pay attention to the suspect, free from road-related distractions, in order to spot the suspect throwing up or putting anything in his or her mouth.
Failure to Follow the Requirements
Because of the strict requirements of the rule, it is often the case that the government is unable to show that the 20-minute observation period was specifically followed. If the rule is not followed as demanded by the law, then an experienced drunk driving attorney will be able to challenge the results of the Alcotest, and may be able to have the results of the test suppressed so that it cannot be used in Court.
Because the law regarding BAC evidence is so complicated, it is important to always consult an experienced DWI/DUI lawyer if you or someone you know is pulled over and charged with drunk driving. An DUI attorney may be able to fight the charges against you or have the charges dismissed completely.
New Jersey DUI/DWI Lawyer Edward M. Janzekovich Knows How to Defend You if You Are Charged with Drunk Driving
A DUI/DWI charge for operating a motor vehicle will involve many complicated evidential issues. Such a charge can also result in severe penalties that affect you and your loved ones. If you are charged with drunk driving or driving under the influence of any substance in New Jersey, an experienced DWI/DUI attorney can make all the difference. To speak with an experienced New Jersey DWI lawyer about your situation, call us at 732-257-1137 or contact us online today. We serve clients throughout the state of New Jersey.