Many people who have been charged with DWI ask about the twenty minute observation period. They have heard that the Alcotest operator must give the arrestee a twenty minute period before his or her breath is tested.
This requirement comes from a case called State v. Chun. In that case, the New Jersey Supreme Court ruled that the twenty minute observation period helps avoid residual mouth alcohol or chewing gum from interfering with the breath test results. If, for example, the arrestee regurgitates and the twenty minute period is interrupted, the operator must observe the arrestee for a new twenty minute period.
Sometimes, the police will say that they observed the arrestee while transporting him or her to the police station and count that time towards the twenty minute period. However, in State v. Filson, the Law Division ruled that: “It is unclear whether an unaccompanied officer can ‘observe’ a defendant while the officer is driving, especially if the defendant is seated behind an interior patrol car barrier, and the officer is distracted by traffic, the radio, and road noise.”
If the State cannot prove that the twenty minute period was properly administered, the defense can argue that the breath test results should be excluded from evidence. In certain DWI cases, this can reduce the penalties that a defendant faces or even help beat the DWI charge entirely.
If you have been charged with a DWI offense in New Jersey, it is critical to speak with an attorney who understands the twenty minute observation period and knows how to investigate if the police followed correct procedures.
As a DWI defense attorney, Jason T. Komninos routinely examines the State’s evidence for issues regarding the twenty minute observation period.
Call Jason T. Komninos, Esq. at (201) 343-4622 to schedule a consultation.