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Breath Test Cases and 15 Minute Observation.


Sometimes police officers surprise you with their honesty. I had a DMV Hearing in Commerce, Los Angeles this week at which the arresting officer was required to testify. This was essentially a fishing expedition for me as there was no obvious argument that I had to win the hearing based on the arrest report. In the officer's sworn documentation filed with the DMV, he signed a sworn statement that he had followed the correct procedures in taking the samples of my client's breath, including observing my client for a continuous period of fifteen minutes prior to the first breath sample, to ensure that there was no belching that could cause mouth alcohol contamination.

Upon cross examination, the officer conceded that prior to taking my client to the breath testing room, she was taken into a private area where she was searched by a female officer. At this time, the arresting officer waited outside the door while the intimate search was completed. The officer then conceded that he obtained the sample of my client's breath ten minutes after the search, thereby failing to observe her for a continuous period prior to the breath test. I carefully questioned him about times prior to this final admission and led him to concede that there was simply insufficient time for the observation period based upon the time of arrival at the police station and the time of the breath test.

This example illustrates that a case which on the face of it had no prospect of a set aside at the DMV, can result in a set aside with some careful cross examination.

Most people arrested for a DUI in Los Angeles want to know what their chances of avoiding a license suspension are. As an experienced DMV Defense Lawyer I tell everyone that the odds of winning a DMV hearing are small, but you never know until you try and if you don't try, you have a one hundred percent chance of a suspension.