Cummings & Kennedy
About Observational Period Violations
If you have been accused of driving while intoxicated, and you have received a breathalyzer test, you are subject to protection under “observation period” laws. Officers are required, by law, to observe a driver for 15 to 20 minutes to ensure that they haven’t had anything in their mouth which may cause a misread from a breathalyzer. So what, exactly, is the observational period? And how can your observational rights be violated?
Defining the Observational Period
The North Carolina Office of Administrative Hearings defines the “observational period” required for breathalyzer tests in article 10 N.C.A.C. 41B.0101(6). Article 10 N.C.A.C. 41B.0101(6) states:
“[The] ‘Observation Period’ means a period during which a chemical analyst observes the person or persons to be tested to determine that the person or persons have not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen. The chemical analyst may observe while conducting the operational procedures in using a breath-testing instrument. Dental devices or oral jewelry need not be removed.“
Why Does the Observational Period Exist?
The observational period is intended to ensure that breathalyzer results accurately represent the blood alcohol concentration (BAC) of an individual. Breathalyzer tests may be inaccurate if the testee has ingested alcohol immediately before a test or if he or she has eaten, smoked, or performed any of the aforementioned actions prior just before receiving the breathalyzer test. In some instances, a breathalyzer may read that a subject has a higher BAC than they truly do.
Observational Period Violations
If a police officer fails to respect observational period rules, you may have grounds for defense against a DWI accusation. For instance, if you ingested alcohol immediately prior to a breathalyzer test, the blood alcohol concentration may be higher in your mouth than your true internal blood alcohol concentration. An officer must wait to perform a breathalyzer for 15 minutes.
During these 15 minutes, an office must observe the individual accused of a DWI. Once again, article 10 N.C.A.C. 41B.0101(6) mentions that “a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten, or smoked in the 15 minutes immediately prior to the collection of a breath specimen.” In short, someone (a “chemical analyst”) must observe the accused for 15 minutes before issuing a breathalyzer test. If the analyst does not observe the accused for that duration, they may be violating the rights of the accused.
Now, the same article notes that an analyst “may observe while conducting the operational procedures in using a breath-testing instrument,” which is to say that an officer can continue to reasonably observe the accused individual while they conduct their normal duties.
There is a caveat to these rules. North Carolina has particularly strict DWI laws. According to section §20-138.1 of the North Carolina Code, an individual can be criminally charged, so long as it can be proven that the driver was impaired. This “impairment” could be from a single beer or it could even be the side effects of legal medication, such as cough medicine. The law actually specifically states that it is not considered a defense that the drugs or alcohol were legally consumed if it is determined that it impaired the defendant’s driving ability.
That said, if an officer is citing a breathalyzer test as proof that an individual was impaired while behind the wheel, the officer is required to respect the rules defined by the observational period.