When administering a breath test , the officer is required to follow certain pre-test protocols Immediately prior to asking the subject to blow into the mouth piece. The term that you will see in the police report is called “the fifteen minute observation period”.
The fifteen minute observation period starts with a mouth inspection by the officer to ensure that the test subject’s mouth is free of all foreign objects (anything removable other than saliva). This may seem like an easy task. However, many officers, because of poor training, do not do a proper job of making sure that there is nothing removable in the subject’s mouth other than saliva. The reason for making sure that the test subject’s mouth is clear is to ensure that there is nothing present that can trap or absorb ethanol molecules and, therefore, produce a “false high” breath test result. Following the mouth inspection, the officer must keep the subject under visual observation for at least fifteen minutes to ensure that the subject does not put anything in his or her mouth or burp. Fifteen minutes is the prescribed time period because it takes about ten minutes for alcohol in a person’s mouth to dissipate.
The goal of breath testing is to measure the concentration, not the amount, of ethanol in the subject’s lungs. The purpose of the fifteen minute observation period, which includes the mouth inspection, is to make sure that the subject’s breath sample does not include alcohol from any other source, particularly the subject’s mouth. For example, if the subject has gum or dip (chewing tobacco) in his or her mouth, those materials will have absorbed or trapped ethanol molecules that will remain in the subject’s mouth well beyond fifteen minutes. Therefore , the Intoxylizer is not only measuring the concentration of ethanol in the subject’s lungs, but is adding the much higher concentration of ethanol in the subject’s mouth. Burping opens up the lower esophageal sphincter (the “trap door’ between the stomach and the throat and mouth). Again, the Intoxylizer is not just measuring the concentration of ethanol in the lungs. It is also measuring the much higher concentration of ethanol in the subject’s mouth which arrives there from the ethanol rich vapor in the stomach.
An interesting hybrid example has arisen during the COVID-19 Era: cloth masks. If the subject is wearing a cloth mask during the observation period, the officer is unable to do to things. One, he cannot observe burping (a silent burp is a fatal to the test as a loud belch). Two, he cannot observe whether the subject is putting anything in his or her mouth including touching the mask with his or her tongue. Most departments have switched from cloth masks to transparent plastic shields for these very reasons.
The foundation for a reliable test result is a proper fifteen minute observation period. Without that foundation, the test result is unreliable.
If you have been charged with operating under the influence or any other crime, please contact us for your free consultation by calling us at 207-879-4000 or through our website www.nicholstucker.com . We are located at 1250 Forest Avenue, Portland, Maine 04103.
Disclaimer: This article is intended to provide general, not specific, information about Maine law. The publication of this article does not constitute an attorney-client relationship between the author(s) and the reader(s).
