You Must Watch Me Before Administering a DUI Breath Test

There are a couple different ways for a prosecutor to attempt to prove a person was driving under the influence. One way is to proceed under an impairment theory, arguing the person was impaired by alcohol or a controlled substance based on the field sobriety exercises or other interactions with law enforcement. Generally, this approach is taken when the prosecutor does not have a breath test.

The other way is for a prosecutor to allege an unlawful breath or blood alcohol level. This is done when a prosecutor has a breath or blood sample that is above the legal limit, which is 0.08. However, just because a breath sample was provided, and maybe over the legal limit, does not mean that the case is closed and the end is near. A breath test still must be admissible in court for it to be used as evidence against the person accused of driving under the influence.

There are many ways to attack or challenge the validity of a breath test. One potential avenue for challenging the breath test is if there was an improper observation period. For a breath test to be valid, the test must substantially comply for the approved methods of the Florida Department of Law Enforcement.

One of the requirements that must be followed is that a person must be observed for a period of 20 minutes prior to providing a breath sample. Florida Administrative code 11D-8.007(3) requires that the breath test operator, agency inspector, arresting officer, or person designated by the permit holder shall reasonably ensure that the subject has not taken anything by mouth or has not regurgitated for at least 20 minutes before administering the test.

Courts have found that because the deputies failed to substantially comply with the twenty-minute observation requirement of Rule 11D-8.007(3), the breath test results were inadmissible. Courts have ruled that 17-minute and 18-minute observation periods do not substantially comply with the requirements of the administrative code. One court even ruled that a 19-minute observation period failed to substantially comply rule 11D-8.007(3).

Not only is the length of time important, what’s also important is how the observation period was conducted. For instance, if an officer alleges that the observation period began at 6:30 p.m. but reports show that the officer and defendant did not arrive at the jail or location of the breath test, then part of the observation would have been done while the officer was transporting the defendant. Again, there is case law stating that the observation period cannot simultaneously run with the transportation of the defendant to the breath test room.

When a person provides a breath sample, it is important to carefully review every detail. One of the details we at Meldon Law review is the observation period. We compare the times of arrest, the time the observation period began, the time of the first sample, and times on the incident report to the times on the breath test affidavit and the times on the dash or body cam. Was our client chewing gum or did they drink anything during that 20 minutes? If the test fails to comply with the Florida Administrative Code, then a motion can be filed to exclude the results of the test from evidence.

If you were arrested, call the Meldon Law Firm. We have the knowledge and experience to help defend you and protect your rights. Call us at to set up a free consultation.