Prosecution and Defense

The 20-Minute Observation Defense

The breath tests are often not reliable. The breath test results are not as reliable as the government wants you to believe. It can often read out false results on the basis of conditions like acid reflux disease, diabetes, or when a person has belched in the preceding 20 minutes. There are certain rules and regulations that local Police and NJ State Police are required to follow in order to perform Blood-Alcohol Content tests (BAC). Before a breath test is given, a driver must be watched for a 20 minute observation period to be sure the subject did not vomit, belch, touch lips, tongue, or ingest any liquid or objects. If any one of these things happen, it is possible that an inaccurate BAC reading will occur. Very often the police do not fully perform the 20-minute observation period and conduct the breath test anyway. The failure to properly conduct an observation period can also render the breath test results inadmissible in a criminal trial or driver’s license suspension hearing.

During the 20 minute observation periods, the police officer is required to sit in front of the DWI subject and watch their activities. During this period the officer is to note if the subject makes any admissions, has watery eyes, stumbles, falls down, goes to sleep, smells of liquor and anything else that may tend to incriminate them. In some instances I have seen an arresting officer state under an oath that the certified breath technician administered the observation period, while the certified breath technician will testify that the arresting officer performed the observation period. This contradiction in testimony may result in a reinstatement of driving privileges. In other instances, the officers did not perform a full 20 minute observation periods. This may also result in the reinstatement of a client’s driver’s license and may possibly result in the breath sample being excluded from a criminal prosecution.

There has always been a general scientific requirement of “observation’ period before requiring a breath test, to avoid contamination by mouth alcohol. The New Jersey State Police, who trial all officers in the state in breath testing, have qualified that as the 20-minute observation period. In any DWI case the State has the burden to prove that a police officer observed the defendant for 20 minutes before he was given the breath test.

In the landmark case State v. Chun, 194 N.J. 54 (2008), the NJ Supreme Court held that operates of the Alcotest 7110 must wait at least twenty minutes before collection a sample from a person who has been arrested in order to avoid over estimated the ratings due to the possibility of residual effects of alcoho in the mouth.

The State must affirmatively prove that a qualified witness fully observed the defendant for a full 20 minutes prior to the taking of the Alcotest. This is to ensure that the defendant does not belch or regurgitate causing alcohol to be present in the mouth which would cause an inaccurate result by the Alcotest.

The police officer of the Alcotest operation must observe the defendant for twenty minutes for permitting him to blow into the machine. It is simply not enough that the person under arrest be in police custody, perhaps int eh back of the police car in handcuffs. The proper procedure required that the defendant actually be observed by the Aloctest operate for twenty minutes to avoid any possible contamination of the breath test samples.

To date, there have been a few major cases to clarify the twenty minute rule. In State v. Filson, 409 N.J. Super. 246 (Law. Div. 2009), the court held that the twenty minute period may begin at the station or immediately after the arrest provided that the officer can testify that the observation was continuous and uninterrupted. The State maintains the burden of proving the twenty-minute period by clear and convincing evidence. Even a short break in the observation period requires that the officer start observing anew. In the case of State v. Ugrovics, 410 N.J. 482 (App. Div. 2009), the Appellate Division ruled that despite of the operation primary responsibility for performing the twenty-minute observation as described in Chun, any qualified witness may perform the 20 minute observation.

At any DWI trial, the State must establish by clear and convincing evidence that during the twenty minute period before the administration of the of the test, the defendant did not ingest, regurgitate or place anything in his or her mouth that could compromise the reliabilty of the breath test results.

The 20 minute defense is one of the best defenses available. In many cases, the defendant is arrested late at night, and the police officers are tired, and can get careless. The State Police are very well trained, and they don’t botch up the twenty minute rule. However, in the Police Departments, in the cities such as Newark, Elizabeth, Camden, Paterson, the twenty minute issue often arises. The bottom line is that in these urban areas, the police often have “bigger fish to fry” than DWI, and are trying to keep the streets safe. Moreover, in these city areas, quite often the police are understaffed. Thus, because of these dynamics they are more prone to make arrears.