Why a Missed Step by Law Enforcement Can Turn the Case in Your Favor
As a Florida DUI defense attorney, I’ve spent years handling cases where the outcome hinges on whether law enforcement followed every required step. One of the most overlooked and often violated procedures is the mandatory 20-minute observation period before administering a breath test. If the arresting officer skips or mishandles this step, the breath test results can and should be thrown out. That can change everything.
If you're reading this, chances are you or someone you care about was arrested for DUI and given a breath test at the police station. What most people don’t realize is that Florida law places specific responsibilities on officers before that test is conducted. A private attorney who knows how to examine police conduct closely can turn that single detail into a full defense. That’s where I come in.
Understanding the 20-Minute Observation Requirement
In Florida, breath test operators are legally required to observe a DUI suspect continuously for a minimum of 20 minutes before administering a breath test. This requirement comes from Rule 11D-8.007(3) of the Florida Administrative Code, which states:
“The breath test operator shall ensure that the subject has not taken anything by mouth or regurgitated for at least twenty minutes before administering the breath test.”
The goal behind this rule is simple: to ensure that the breath sample is not contaminated by substances in the mouth, including alcohol, vomit, burping, food particles, or regurgitation. If you burp or vomit, alcohol from your stomach can be introduced into your mouth and falsely elevate your test results.
A private defense attorney can subpoena video footage, dispatch logs, and officer testimony to uncover whether this rule was truly followed. A public defender may not have the time or resources to investigate whether a cop stood by watching or simply left the room while writing paperwork.
What Happens When the Rule Is Broken?
If the officer fails to properly observe you for 20 uninterrupted minutes, the breath test results become vulnerable to suppression. That means they can be excluded from evidence. Without that test, prosecutors often lose their most critical piece of evidence.
Courts across Florida have held that failure to comply with the 20-minute rule can make breath test results inadmissible. It’s not enough for the officer to claim they watched you. They must be able to demonstrate that you were under continuous observation and that you did not burp, vomit, eat, drink, or place anything in your mouth.
This is where hiring a private defense attorney matters. I file motions to suppress, I cross-examine breath test operators under oath, and I hold the prosecution to its burden of proving that every step was followed.
Real Case Example: DUI Charges Dismissed After Surveillance Review
One of my clients, a 34-year-old nurse in Clearwater, was arrested after being stopped for speeding. She admitted to having one drink with dinner. At the station, she submitted to a breath test, which showed a blood alcohol concentration of 0.09—just over the legal limit of 0.08.
We requested the jail surveillance footage and matched it to the timestamps in the breath test report. What we found was critical. The breath test operator was not in the room for several minutes during the supposed 20-minute observation window. The officer left the room twice, once to check paperwork and again to talk to another officer. During that time, my client covered her mouth, yawned, and even coughed. That was enough to introduce the possibility of mouth alcohol contamination.
We filed a motion to suppress the breath test results based on failure to follow Florida’s 20-minute rule. After reviewing the footage, the judge granted our motion. With no breath test evidence, the prosecution was forced to drop the DUI charge entirely.
Without a private defense lawyer who knew how to break down video, cross-check timestamps, and file the right motion, she could have lost her license, her job, and her future.
Related Florida Statutes and Legal Requirements
While the 20-minute observation rule is not in the Florida Statutes themselves, it's embedded in administrative law that governs breath testing in Florida. That rule is enforced under Florida Administrative Code Chapter 11D-8, and it works in tandem with Florida Statute § 316.193, which governs DUI offenses.
Here’s the text of § 316.193(1)(a):
“A person is guilty of the offense of driving under the influence… if the person is driving or in actual physical control of a vehicle… and the person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood or a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.”
But to use a breath-alcohol level in court, the State must prove the test was done in full compliance with procedures, including observation. If that standard isn’t met, the breath test results can be excluded, and with it, a major piece of the State’s case disappears.
What Defenses Work When the 20-Minute Rule Is Broken?
The key defenses that come into play when the observation period is not properly followed include:
Motion to Suppress Based on Improper Procedure
This motion argues that the breath test results are unreliable and must be thrown out. Without compliance with Rule 11D-8.007(3), the prosecution lacks a legal foundation to admit the test into evidence.
Reasonable Doubt About Impairment
If the breath test is excluded, prosecutors must rely on officer testimony, field sobriety tests, or dashcam video. Without a number to point to, their case becomes much weaker. We can cast doubt on whether you were truly impaired.
Violation of Due Process Rights
Improper handling of the observation period may also be argued as a violation of your right to fair procedures under both the U.S. and Florida Constitutions.
Inconsistent Officer Testimony
When cross-examined, officers often contradict themselves about whether they were watching you continuously. By highlighting these inconsistencies, I create doubt that works in your favor.
Why You Need a Private Attorney for This Type of DUI Defense
Fighting a DUI charge when the breath test is questionable is a technical, time-sensitive process. A private attorney can immediately request footage from the holding room, analyze officer movements, and compare logbooks with actual observation times. A public defender may not have access to those same resources or time to investigate that thoroughly.
I’ve spent years defending clients across Florida—including Miami, Tampa, Sarasota, Fort Myers, and Orlando—against DUI charges involving faulty breath test procedures. I’ve handled cases where breath test machines were not properly calibrated, where officers skipped steps, and where the State’s own evidence helped us win.
When you hire me, I’m not just challenging a breath number. I’m building a defense from every angle. If there’s a failure in procedure, I’ll find it and use it.
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.
Florida DUI Defense Frequently Asked Questions (FAQs)
What is the 20-minute observation rule in a Florida DUI case?
The 20-minute observation rule requires that a police officer or certified breath test operator observe a DUI suspect continuously for at least 20 minutes before administering a breath test. This is to ensure that the person does not burp, vomit, drink, eat, or place anything in their mouth that could affect the test result. If this rule is broken, the breath test may be thrown out as evidence.
What happens if the officer didn’t follow the 20-minute observation rule?
If the officer failed to watch you for the full 20 minutes, we can file a motion to suppress the breath test results. Without a valid test result, the prosecution may not be able to prove your blood alcohol concentration was over the legal limit. This often leads to charges being reduced or dismissed entirely.
How can I prove the officer wasn’t watching me during the observation period?
We often request police station surveillance footage, review timestamps on breath test documentation, and analyze dispatch logs to determine where the officer was. If the officer stepped away, wrote reports, or looked elsewhere, we can argue that you were not under continuous observation.
Is the 20-minute observation rule part of Florida law?
Yes, it is enforced through Florida Administrative Code Rule 11D-8.007. Even though it’s not written into the Florida Statutes, it carries the force of law and must be followed if the State wants to introduce breath test results into evidence.
Can I still be convicted without a breath test result?
Possibly, but it becomes more difficult for the prosecution. Without a breath test, the State must rely on other forms of evidence like field sobriety test results, dashcam video, or witness testimony. A skilled defense attorney can challenge those as well.
Is the 20-minute rule required for all DUI breath tests in Florida?
Yes, it applies to every breath test conducted by law enforcement in Florida. Any deviation from that rule can be grounds to question the reliability of the test.
How does a private attorney make a difference in breath test suppression cases?
Private attorneys have the resources to act quickly, analyze surveillance footage, hire experts if needed, and file targeted motions. These cases can be won or lost on procedural errors, and having someone with time to dig into the details is often the difference between a conviction and a dismissal.
Does the 20-minute observation have to be uninterrupted?
Yes. The officer must watch you continuously for 20 minutes without distraction. If they leave the room, look away for extended periods, or become otherwise preoccupied, that period resets. We use these failures to argue for suppression.
Can the breath test be excluded even if I blew over 0.08?
Yes. A breath test result is only admissible if it’s obtained properly. If the 20-minute rule was violated, even a reading above the legal limit can be excluded. That gives us a powerful opportunity to get the case dismissed or significantly reduced.
Is it worth fighting a DUI if I failed the breath test?
Absolutely. Breath test results are not always reliable, especially if the procedures were not followed. I’ve had many cases where the breath test result looked damaging, but after challenging the officer’s conduct, the test was excluded and the case resolved favorably for my client.
Contact Musca Law 24/7/365 at 1-888-484-5057 For Your FREE Consultation
Musca Law, P.A. has a team of experienced criminal defense attorneys dedicated to defending people charged with a criminal or traffic offense. We are available 24/7/365 at 1-888-484-5057 for your FREE consultation. We have 30 office locations in Florida and serve all counties in Florida.