How To Challenge The 15 Minute Observation Period For A DUI Breath Test

Kitsap DUI Lawyer Ryan Witt

When a DUI defense attorney looks over the facts of a case, what they are trying to do is figure out what evidence can be “suppressed,” or in other words, be declared inadmissible at a future trial. One of the most common pieces of evidence that a skilled attorney will attempt to suppress is the results from the BAC (Blood Alcohol Content) test. If the BAC result is suppressed, this removes the most significant piece of evidence from the State in a future DUI prosecution. Without the BAC test result, the State would have to prove that the defendant is “affected by” alcohol, and that is not always easy to do. So how do you suppress the BAC result?

Challenge the 15 Minute Observation Period

 

Under Washington’s Law governing breath tests, an officer must conduct a fifteen minute observation of a person arrested for DUI prior to the administration of the breath test. This requirement comes from RCW 46.61.506, Washington Administrative Code (or WAC) 448-16-040 and from the Washington State Patrol’s BAC DataMaster Operator’s Manual. Each of these authorities mandate an uninterrupted observation period of at least 15 minutes. If the observation period is interrupted, it must be restarted – including a new mouth check.
The observation period begins with the officer conducting a mouth check. This can either be a physical inspection, or the officer simply asking the subject if they have anything in their mouth. Once the mouth check is complete, the observation period has begun. The following is a statement that must be sworn to, every time an officer conducts a BAC test:

 

I observed the subject during the entire observation period and during that time they did not eat, drink, smoke, vomit, or place any foreign substance in their mouth.

 

This begs the question, what does “observe” mean? Many officers treat this requirement (that they are swearing to!) very lackadaisically. Most defense attorneys argue that any break in the observation period invalidates the period, and thus, invalidates the test result. For example, when the officer fills out forms, leaves the room for any reason, lets the subject go to the bathroom, or, the most egregious – drives with the detained subject in the back of the patrol car. Most defense attorneys have a very black and white definition of the meaning of “observe.” The courts, not so much. 

“Observe” Doesn’t Necessarily Mean Visual Observation

In 2013, a Washington Appellate Court chipped away at the requirement for direct, 100% visual observation. The Court in State v. Mashek 177 Wn.App 749 ruled that the observation “need not be strictly visual but, rather, can be a combination of other senses….” The Court lowered the bar and said as long as there is “prima facie evidence” (evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved) that the person did not vomit, eat, drink, smoke, or have foreign substances in their mouth for 15 minutes before the test, then the test is valid. Basically the Court indicated that an officer can use a combination of any number of their senses to keep an individual under their observation. 

This Mashek Decision Is An Obstacle, But It Is Not Insurmountable

Even with the Court diluting the uninterrupted observation period rule, officers still FREQUETNLY violate the rule in an irreparable way. For example, they leave the BAC room for several minutes, or a second officer signs the form that didn’t observe the subject at all. And there is definitely not a clean observation of a defendant in the back of a patrol cruiser when the officer is driving. The ability to suppress the BAC result with this defense is slightly harder, but it certainly did not go away.

Contact A DUI Defense Attorney

The penalties for a DUI conviction are severe. If you are facing a DUI charge, give yourself the best chance at avoiding or mitigating the penalties of a DUI conviction. Contact the DUI defense attorneys at Witt Law Group right away!