Required 15-Minute Observation Period

State v. C.H.

Defense Attorney:

Matthew B. Nichols

Offense:

Operating Under the Influence (OUI, DUI, DWI)

Maximum Sentence:

364 days in jail (minimum 48 hours in jail), 90 days license suspension and $2,000 fine

Synopsis:

Client, a Connecticut licensee was stopped by a Maine State Trooper in Somerset County for erratic operation. A friend of client’s pulled up to the scene and told the Trooper that he had been trying to stop client from driving because he had been drinking. Client failed the field sobriety tests and the Trooper administered a breath test (balloon kit). The result was a 0.17% BAC.

On cross examination the Trooper indicated that client’s operation was more consistent with someone who was lost than the erratic operation one would expect to see from someone who was impaired by alcohol. Client also testified, not to contradict the Trooper’s version of how he performed the field sobriety tests, but rather to explain his degree of nervousness and fatigue based on the events of the last couple of days.

Before a breath test can be administered the officer must keep the arrestee under strict observation for fifteen minutes to make sure that nothing occurs that would contaminate the breath sample with residual mouth alcohol. Client testified that he was sure that there had been a break in his contact with the Trooper from the time that he was handcuffed to the time that the Trooper returned to the cruiser to administer the breath test. On cross examination the Trooper had to concede that there was a break in his contact with client because he had gone back to speak with client’s friend and because he had to retrieve a breath kit from the trunk of his cruiser all after having placed client in the front seat of the cruiser.  However, Trooper testified that he was certain that when he got in the cruiser that he restarted his fifteen minute observation and completed that process before administering the breath test.

In fact, an examination of the time log that the Trooper had recorded at the time of the incident and included in the sealed breath kit box (the Trooper had not seen that document since the date of the arrest some twelve months earlier) revealed that client was correct and the Trooper was incorrect. The Trooper had not, in fact, kept client under observation for a full uninterrupted fifteen minutes prior to the administration of the breath test.

Verdict:

Not Guilty