DUI Breath Test Operator Must Follow Rules or Driver’s License Suspension Will Be Overturned

During the course of a DUI investigation, the police officer will often request that the driver submit to a breath test, aka breathalyzer. If the driver agrees to submit to the breathalyzer test, there are certain rules the police officer must follow for the breath test to be valid. When a person gets arrested for driving under the influence of alcohol (“DUI”) in Florida, the Department of Highway Safety and Motor Vehicles (“DMV”) will automatically suspend the driver’s license. This suspension is independent of the criminal case and the potential suspension that is part of a criminal sentence.

A person arrested for DUI in Florida has a right to challenge the DMV’s license suspension through a formal hearing. At that hearing, the criminal defense lawyer can raise certain issues relating to whether the stop of the driver was legal, the police officer had reason to arrest the driver and the breath test was valid.

One of the rules relating to breath tests referenced above is the 20 minute observation rule. If the driver agrees to the breathalyzer test, a police officer must observe the driver for at least 20 minutes prior to administering the breathalyzer test. The purpose of this rule is to make sure the driver does not ingest anything by mouth or throw up which would alter the breath test results. Once a police officer has confirmed that the driver has neither taken anything by mouth or vomited for a continuous 20 minute (or more) period, it is proper to administer the breathalyzer test.

In one Florida DUI case, the surveillance camera in the area where the breathalyzer test was administered showed that the driver went into the bathroom unescorted for two minutes during this 20 minute observation period. The police officer tried to claim that she watched him for the full 20 minutes, but the video proved this to be false. Because there was a two minute period where the police officer could not say exactly what the driver was doing, the subsequent breathalyzer test results were invalidated, and the driver’s suspension was reversed.

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