Twenty Minute Observation: What It Means to Your DWI Arrest
- Dan T. Matrafajlo
- Fri Feb 2019
Somewhere along the lines, you heard there were consequences for refusing a breath test. However, did you know? The law requires a twenty-minute observation period before administration of the Alcotest. Otherwise, the circumstances of your DWI arrest may be questionable.
Here’s what happens in a typical DWI stop. First, the police pull you over citing probable cause. It could be that you were driving too fast – or even too slow. Whatever the reason, the officer feels there is something wrong with the way you are operating your motor vehicle.
For a moment, you are temporarily blinded by the flashlight pointed in your car. As you begin to pull out your credentials, the policeman gets a whiff of your breath. You have no choice but to admit you’ve been drinking.
Your fun evening just turned bad as the officer begins what you know are field sobriety tests. Although you’ve heard all about walking a straight line, you’re not sure you can do it. Before you know it, you’re requested to submit to a breathalyzer test.
Again, you’re aware that your failure to consent to a breath sample won’t bode well. At the time, you don’t realize it. A positive blood alcohol content (BAC) reading does not necessarily mean you will be convicted for driving while intoxicated.
Twenty-Minute Observation Period
So, what about the twenty-minute observation period? What’s that all about? Is there a reason it is required by law?
In New Jersey, people tend to use the term breathalyzer to mean the tests conducted by the Alcotest 7110 device. In case you’re confused, this is the machine used if you’re taken back to the police station for blood alcohol testing.
More than a decade ago, State v. Chun established protocols regarding test administration. This included requirements that Alcotest operators wait twenty minutes before collecting samples. To take it a step further, the driver must be continuously observed during that twenty-minute time period.
The Chun matter goes on to explain the reasons for the observation. It needs to be clear that the test subject doesn’t have the opportunity to imbibe alcohol just prior to the test. The driver may not chew gum or smoke tobacco.
That said, if the test subject swallows anything or vomits, the twenty-minutes of observation starts over. (This is also the case if the operator discovers the presence of gum or tobacco.)
Like anything else, Alcotest devices can react to different conditions. The twenty-minute observation period seeks to prevent possible contamination of the breath sample.
The law remains strict on breathalyzer tests. In some situations, an experienced DWI attorney seeks to suppress evidence related to improperly administered breath tests.