Interviewer: Once the police arrest you and you are at the station, what are the rules regarding testing? Do they have to wait a certain period of time, but not too long after they administer the breath test to you?
Carl Spector: That is completely accurate, actually. In order to uphold a valid sample, not only do they need two valid samples. They also need to have an uninterrupted observation of the individual who is going to take the test, for 20 minutes.
The police have to make sure that the person who takes the breath test has not put anything in their mouth; and has not burped or regurgitated for 20 minutes prior to giving the person the opportunity to take the breath test.
If any of those three things happen- they burp, regurgitate or put something in their mouth, the police are supposed to restart the test 20 minutes from the time that event occurs. So suppose it is 19 minutes into a police officer’s uninterrupted observation of a person who is arrested. If that person then burps and the officer is aware of it, they have to restart the clock from zero back up to 20.
Interviewer: Are people allowed to drink anything, water or any other fluids?
Carl Spector: The protocol is that police officers will not permit anybody- a subject, arrestee or defendant, to drink anything prior to taking the breath test. Sometimes, however, the police do not realize that a subject, defendant or person placed under arrest might have a piece of gum in their mouth. Then, the police do not want to restart the 20 minute observation.
Sometimes, the 20 minute uninterrupted observation is really the police officer sitting at his or her desk doing paperwork; or working on the Alcotest machine, putting information in. The police are not really watching the subject at all, and that could be challenged.
Interviewer: Could the police have the person in a holding cell where they are not truly watching them there either?
Carl Spector: That is accurate. I have had that a lot with many clients. One of the inquiries I always have to make is whether or not there is any video where the police have somebody watching while the person is in the holding cell. That video, if it does exist and has not been erased, can be supplied to us so we can view it.
Now, that is not always good enough. In order to be able to observe whether somebody burped or regurgitated, you might have to be in their physical presence because there is a sound made. It is not always so apparent, especially if the video is not in a good position to see that person. They might have their back to the video.
Interviewer: What happens if someone has to go to the bathroom, and they urinate? Would that change their body chemistry, if it happened before they took the test?
Carl Spector: Well, generally speaking, police officers will not allow the person to go to the bathroom. A lot of my clients have been prohibited from using the bathroom facilities prior to taking the breath test. Again, officers in many cases will not allow people to go to the restroom before the test is given; not until afterwards.
By Carl Spector