Attorney Andrew D. Alpert of Alpert Schreyer Poe, LLC joined others in the National College for DUI Defense and the Maryland Criminal Defense Attorneys’ Association in filing a brief in support of a writ of certiorari to have the lower court submit its review of a client’s case to an appellate court. The brief maintained that the client’s case “presents an issue of great importance in drunk driving cases”: the issue of breath alcohol test requirements in the state of Maryland.
In the brief, Attorney Alpert and others argued that Maryland’s 20-minute waiting and observational period for a breath alcohol test must be made a prerequisite for admitting breath results in evidence. It is, as they put it, the best and only way to ensure that breath alcohol test results are accurate. Testing sooner and without any observation period could allow for mouth alcohol (alcohol in the mouth) to contaminate samples and give way to a falsely high reading.
“For drivers who have recently consumed alcohol or mouthwash, if there is still alcohol in their mouths or stomachs, and if the stomach alcohol gets into the mouth through a belch, regurgitation, or gastro-esophageal reflux disease (GERD), it could cause a false high result,” the attorneys wrote.
The state of Maryland already requires the completion of a 20-minute observation period before a breath alcohol test can be administered. The observation must be done by a breath test operator and/or civilian law enforcement personnel, the latter of whom are not required to have any specific training in breath test administration. The state also does not require the observation to be done in front of the machine; thus, the observation could technically be done while driving, administering field sobriety tests, or completing paperwork.
The brief asserts that the 20-minute observation requirements must be strictly observed and that the entirety of the observation should be conducted in front of the machine. This allows for a more reliable observation, as all it takes is a small, easy-to-miss belch for alcohol to be brought into the mouth. Within the same vein, the brief argues that untrained officers should not be allowed to conduct the 20-minute observation.
To read the full brief, kindly click here.
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