NC DWI Observation Period Violation

I recently had a conversation with one of our recent NC DWI defendants, who insisted that his case should be dismissed because the chemical analyst had left the room during his 15 minute observation period immediately prior to the collection of his breath specimen.  So essentially, he is requesting Attorney Moseley Matheson argue that the State Trooper violated the observation period requirement of N.C. Admin. Code tit. 10A, r. 41B.0101(6) (2009). So after conducting some legal research and figuring out the proper response to our client’s request, I thought it would be best to share with you my findings.  As legal professionals, we are responsible for making sure our clients are able to make informed decisions as well as advocating for their best interests.

What our client was referring to when he mentioned the “observation period” is a phase of the NC DWI charging process in which a chemical analyst observes the person or persons to be tested to determine that the person or persons has not ingested alcohol or other fluids, regurgitated, vomited, eaten or smoked in the 15 minutes immediately prior to the collection of a breath specimen.  From a defense perspective, we could  argue that by leaving our client alone and focusing his attention on unrelated activities, the Trooper’s failure to observe that our client regurgitated or vomited during this observation period has lead to an inaccurate breath result.  Whether our client did actually regurgitate or vomit during this period is not necessary to argue this motion successfully.  The purpose of the observation period requirement is to enforce law enforcement to carry out proper collection protocol so that the chemical breath test result is the most accurate measure possible.  So therefore it would be reasonable for anyone to conclude that if the Trooper is not watching our client, closely, during the 15 minute period, he or she would could potentially miss these bodily reactions that could skew the person’s results and lead to an improper charge.  Does this means our client can get his NC DWI charge dismissed?  Maybe, but it will take a strong defensive argument to counter the ruling in State v. Roberts.

In State v. Roberts, the defendant argued that the officer failed to comply with the statutory requirement of a 15 minute observation period prior to the administration of the test. However, “nothing in the relevant regulatory language requires the analyst to stare at the person to be tested in an unwavering manner for a fifteen minute period prior to the administration of the test.” In this case, the officer observed the defendant for 21 minutes, during which the defendant did not ingest alcohol or other fluids, regurgitate, vomit, eat, or smoke; during this time the officer lost direct sight of the defendant only for very brief intervals while attempting to ensure that his right to the presence of a witness was adequately protected. As such, it was ruled the officer complied with the observation period requirement.

This does not mean that an argument for a violation of the observation period is out of the question.  Attorney Matheson has successfully defended a former client of ours based on these grounds and was able to suppress their breath test results. The lesson learned is that you need to fully understand the facts of the case.  An attorney, or paralegal, must ask their client about the details of what occurred in the breath testing room.  Did the officer step out of the room, and if so, how long was he or she away?  Did you regurgitate or vomit during this 15 minute waiting period?  The answers to these questions are extremely important to building an argument and challenging the breath testing procedures.  Our duty as legal professionals are to ensure that the citizens in our community are not subject to the improper collection of chemical data to be used against them in a court of law.


Cameron Hardesty

Senior Criminal Defense Paralegal

Matheson & Associates PLLC


For more information about the NC DWI process please contact our office at 919.335.5291.  We are available 24/7 to meet the needs of our clients.

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