America's Drunk Driving Defense Attorneys ™

Cross-Examination of the Breath Alcohol Test Operator: Impeaching Testimony of the Observation-Period Requirement
By Donald J. Ramsell

Rendering Breath Test Results Inadmissible

Proper cross-examination of a breath alcohol test operator is one of the most crucial elements in the defense of a drunk driving case. Not only can the defense attorney attack the reliability and question the accuracy of the breath alcohol test results, but effective cross-examination can serve as a basis for excluding the test results from evidence.

One strategy that defense counsel should employ is to establish a violation of the rules that pertain to the observation period immediately preceding administration of the breath test. Typically, jurisdictions require that the defendant be observed continuously for a period of fifteen to twenty minutes prior to the test. The purpose of this requirement is to ensure that the defendant has not smoked, drunk, burped, regurgitated or placed anything in his or her mouth that can artificially increase the amount of mouth alcohol and thereby affect the test results. In some jurisdictions, if the prosecution cannot provide evidence of a continuous observation, the test results are inadmissible in evidence. In other jurisdictions, failure to follow the requirements goes only to the weight of the evidence, i.e. a factor for the jury to consider in accepting or rejecting the evidence.

Establishing the Maximum Observation Period

When cross-examining the breath alcohol test operator, the defense attorney should first "lock" the operator into a maximum observation period. This period should represent that greatest possible amount of time that the operator could have observed the defendant prior to administering the breath test. For example, in one jurisdiction that requires a twenty-minute observation period, the officer's report indicated that he arrived at the police station with the defendant at 7:41 a.m. The results of the breath alcohol test were printed out onto a ticket at 8:02 a.m., creating a maximum observation period of twenty-one minutes. A transcript of the officer's testimony illustrates this procedure:

Defense Attorney (Q): And you arrived at the police department for processing at 7:41 a.m.?

Officer (A): I don't recall.

(Q) If you took a look at your report, would that refresh your recollection?

A: Yes.

Q: And would it have been 7:41 a.m. when you arrived at the station?

A: Yes.

Proving a Violation of the Observation Requirement

Once the parameters of the observation period are established, the defense attorney should then elicit testimony regarding the many possible activities that the officer may have performed during the period. The operator's admission of any number of such activities will support the allegation that the operator was not able to observe the defendant continuously. In the case referred to above, the admissions were obtained as follows:

Defense Attorney (Q): And t the time you arrived at the police department, what was the first thing you did with respect to the suspect, place him in a room?

Officer (A): Yes, I did.

Q: Did you put your gun anywhere, place your gun belt or check it with anyone?

A: The -- may weapon was placed in the weapons box in the city lockup.

Q: Is that the same room the defendant was standing in?

A: Yes.

Q: And how many feet was it from the defendant when you placed that in the box?

A: Four or five feet.

Q: Did you go and pick up any forms to complete for this?

A: No, I did not.

Q: Were they at the table with you?

A: They were with me.

Q: Was the breath test device in the same room?

A: Yes it was.

Q: Did you get up and leave to adjust the breath test device prior to having the defendant take the test?

A: Yes, I did.

Q: Did you turn your back on him when you adjusted the machine?

A: Yes, I did.

Q: Now, officer, the test was performed at 8:02 a.m., is that correct?

A: That's true.

Q: Exactly twenty-one minutes after arriving at the station the test result came out of the machine, is that correct?

A: Yes.

Q: Now, it takes approximately ninety seconds, does it not, for the breath alcohol test to analyze the breath sample of the defendant?

A: I don't know exactly how long it takes.

Q: If the result came out at 8:02 a.m., would it be more likely than not that the blow began at approximately 8:00 o'clock?

A: It's possible, yes.

Avoiding Rehabilitation

The cross-examination above indicates that the operator has not complied with the twenty-minute observation-period requirement. At this point in the trial, however, the defense attorney should not object or otherwise point out the defect. Instead, counsel should wait until after the operator has completed testifying. This will help to avoid rehabilitation of the operator's statements through subsequent testimony. Defense counsel should object when prosecution subsequently attempts to introduce the results of the breath alcohol test into evidence, as follows:

Persecutor: I have no direct questions. However, at this time I would move to introduce into evidence the breath ticket.

Defense Attorney: Judge, my only objection would be on the basis of the twenty-minute observation period. I believe it has been violated in this case. The testimony is that the officer arrived at the station at 7:41 a.m. The results of the test were produced at 8:02 a.m., a twenty-one minute period during which the officer both left the table to drop off his gun and also left his table in order to prepare the breath alcohol test machine for operation. Also, the officer had indicated that there is a portion of time during which the machine processes the sample. So, clearly, the test had to begin before 8:02 a.m. for the result to occur at that time. Your honor, with those three incidents I would indicate to the court that it would have been impossible for the officer to observe the defendant continuously for the full twenty-minute period of time.

The court itself may then examine the operator:

The Court (Q): What time did you start watching [the defendant]? Prior to the time he put his mouth on the intake tube of the breath test device.

Officer (A): Approximately the time I arrived.

Q: Which was how many minutes before you actually took the test?

A: Well, in reference to the time on the test, your Honor, that is the time of the test. Whether the results came back ninety seconds later is not indicated on my test card. I write the actual card, he blew into the machine.

Q: What time exactly was that? The time he actually blew into this --

A: 8:02 a.m.

Q: 8:02 a.m., okay. Now going back from - let's make it 8:00 for the moment, then we'll add two.

A: Okay.

Q: Now, when does he say he got to the station?

A: I indicated on my report 7:41.

Q: How long did it take you to put the gun away and all that? If you got there at 7:41 a.m., officer, you would have had to watch him from 7:42 to 8:02 a.m.

A: The time it takes for me to get into the police department and walk from the front through the lockup area and while you walk through the hallway they have a lock box; and I had the defendant along with a city police officer position him in a corner while I placed my gun in the lock box.

Q: How long did that take?

Defense Attorney: To get the officer, to get the gun, to put it in the box?

A: I placed the gun in the lock box myself. From the time it took to get into the police department to the back and begin my observation, around a minute.

Q: You're telling me you had from 7:42 to 8:02 to watch him and are you telling me there might have been times you didn't watch him during the period straight out?

A: There - yes, there may have been times when I had my back turned, yes.

Q: Right now [defense counsel] has the win on the motion to suppress.

The persecutor then asked for a continuance to bring in another officer who may have observed the defendant.

Defense Attorney: Judge, he's rested. He's introducing the ticket.

Prosecutor: That's right.

The Court: Okay, I'm going to suppress -

Defense Attorney: It's the state's case.

The Court: I'll suppress the breath test itself.

Employing this strategy when cross-examining the operator of a breath alcohol test operator, defense counsel can frequently suppress the client's breath test result.

DWI Checklist - Observation-Period Interruptions

The following factual situations commonly represent violations of observation-period requirements:

• Travel time from scene of arrest to police station nearly equal to observation-period requirement.
• Observation by officer of more than one arrestee simultaneously awaiting breath tests.
• Delegation of observation duty to another.
• Use of rest room by defendant.
• Placement of telephone call by defendant.
• Removal of dental hardware ( e.g., dentures, braces) from mouth releasing residual mouth alcohol.
• Failure of breath alcohol test to register result (e.g., invalid sample) in jurisdictions requiring additional observation period prior to administration of second test.