Client Burps, Judge Throws Breath Test Out, We Win (PLUS: practice tip!)

Posted On August 11, 2017 Hayley Steptoe

Before you take a breath test, a police officer is supposed to watch you for a 15-20 minute period to make sure you don't belch, burp, vomit, or put anything in your mouth. This is because your stomach may contain alcohol at a higher concentration than any alcohol in your breath, and burping or vomiting can introduce that into your mouth. Objects in your mouth, such as dentures, can also trap alcohol at a high concentration. The observation period lets this mouth alcohol dissipate and makes sure no new sources of mouth alcohol are introduced.

You'd think that an observation period would involve actual observation, wouldn't you? Unfortunately, the legal system puts the burden on drivers, not the police, to "prove" the observation period didn't work -- a daunting task when it's a driver's word versus an officer's sworn testimony.

But tough legal hurdles just mean we have to work smarter, like in our recent victory. In that case, our client was taking a breath test at the station. The officer testing him wrote that yes, during the observation period, "subject did burp," but didn't "belch." The officer didn't ever explain the difference. He also didn't conduct another observation period to let any mouth alcohol from the burp dissipate. 

At the implied consent hearing (contesting the driver's license revocation -- since these cases are civil, rather than criminal, they are harder for us to win), the judge threw the case out right then and there. This was a big won for our client and the basic cause of "science," and happened because we were able to convince the judge that:

  • When a test isn't conducted with proper scientific safeguards, the result isn't reliable. 
  • The State can't revoke someone's driver's license based on a breath test if that test isn't scientifically valid. It would be like taking someone's driver's license away based on phrenology or on the driver's astrological sign. 

We believe in sharing our expertise with the legal community, so for you defense lawyers out there, here's our practice tip: you need to persuasively shift the paradigm from the old case law (burden is on the driver to bring some evidence of why an incorrectly-conducted observation period affected the validity of the test) and put that burden where it belongs -- on the State. Look in the DMT operator's manual (I'm linking the 2016 version, but it's worth it to look at older versions too). Force the testing officer to admit that there are certain safeguards necessary to ensure the test results are valid, reliable, and accurate.

Then . . . Go through the loooong list of those safeguards, including the one he or she may have failed to employ. Be methodical; be complete; be an expert. Remember, you don't need to be the smartest person in the world, but you DO have to be smarter than the witness you are cross examining.

And that is the takeaway from today's blog: if you want to be a DWI defense attorney, you need to know more about breath tests than the people that are using those tests. That knowledge won't guarantee a win for your client, but lacking that knowledge will almost guarantee that your client loses.

Yet again, Ramsay Law Firm wins by being the most knowledgeable people in the room when it comes to the science of DWI law. Our lawyers have strong credentials: certification from the Borkenstein Institute, the same educational institute as the nationwide experts on the law enforcement side go through and teach at; training on the DMT by the machine's own manufacturers; Forensic Lawyer-Scientist designation from the American Chemical Society; and other achievements.