The following is the second section of a three-part series about the top 10 DUI defenses:
#4: “Mouth Alcohol” Resulted in a Falsely High BAC Reading
Prior to administering a DUI breath test in California, an officer must continuously observe your actions and behaviors for 15 minutes to ensure that you do not put anything containing alcohol into your mouth. This includes drinks, mouthwash, medicine, etc.
In addition, the officer must make sure that you do not burp, belch, or vomit. Doing any of these things can result in alcohol from your stomach and into your mouth, causing “residual mouth alcohol” that can be used a defense strategy to DUI charges.
#5: Arresting Officer Failed to Conduct an Adequate 15-Minute Observation Period
As mentioned above, it is mandatory for an arresting officer to observe a suspected drunk driver for a complete 15 minutes before performing a DUI breath test. In some cases, however, officer do not actually “observe” during the observation period. Instead, they do paperwork and/or set up the breath test device. Demonstrating that the officer failed to conduct the observation in a proper manner can prove detrimental to the entire DUI investigation.
#6: Arresting Officer Failed to Comply with California’s Title 17 Regulations on Blood & Breath Testing
California Code of Regulations Title 17 governs how DUI blood and breath tests must be administered. If the Title 17 regulations are not conducted in a proper manner, the respective breath or blood test results could be affected and tainted.
The requirements for California Code of Regulations Title 17 include:
- 15-munite observation period
- Adequate training with regards to administering the chemical tests
- Proper administration of the tests
- Regular calibration and maintenance of the testing equipment
- Proper collection, handling, and storage of blood samples