If police conduct a traffic stop and believe that you may be under the influence of alcohol, they can’t just remove you from the vehicle and force you to take a breath test within minutes of pulling you over. Among other things, Minnesota requires that an “Observation Period” be held before a suspect provides a breath sample. In today’s blog, we take a closer look at this observation period and explain how a failure to abide by this period can affect your DWI case.
DWI Observation Period
According to DWI law, officers are required to observe a driver for a minimum of 15 minutes before having them provide a breath sample. The reason this observation period is mandatory is because mouth alcohol can affect a breath test result. For example, if the driver had just finished a beer five minutes ago or had been burping recently, alcohol could remain in the mouth and cause inflated breath test results. The theory holds that this mouth alcohol erodes after about 15 minutes, so an officer is supposed to observe an individual for 15 minutes to ensure that any residual mouth alcohol is gone.
An officer is supposed to observe an individual for any of the following actions:
- Alcohol consumption
- Burping
- Belching
- Vomiting
If any of these actions occur, the observation period is supposed to reset, however this also doesn’t mean that you can just burp every five minutes until you’re sober and avoid a DWI. Intentionally avoiding taking this test in this manner can be just as damaging as taking the test and failing.
Failure To Observe
If police fail to abide by this observation period, your attorney may be able to get the breath test evidence suppressed, and without this, the State may not have much of a case. For example, let’s say that an officer arrested an individual on suspicion of DWI. At the station, the driver is read the Breath Test Advisory, consents to the test and it is immediately given. If the individual has only been at the station for five minutes, that means the Observation Period includes the period when the officer was driving the suspect to the station. Although the individual is in their custody, the officer certainly isn’t able to drive and ensure that a suspect in the back of the vehicle never burps or regurgitates stomach contents. This would not be considered a proper observation period, and courts have suppressed breath test results in these situations.
While it’s rare for police to violate the observation period rule, it’s something that can be overlooked when planning your defense, especially if you try to represent yourself at trial. Determining if the officer followed the observation period requirement is just one of the many ways we look to help put our clients in a better position to win their case. Police need to follow certain basic procedures during a DWI arrest, and if they fail to do so, you may be able to have evidence suppressed or the case thrown out.
For more information about the observation period or DWI cases in general, reach out to Avery and the team at Appelman Law Firm today at (952) 224-2277.
