Observation Period in Breath Test DWI Cases to be Reviewed by MN Supreme Court in Knapp v. Commissioner of Public Safety
Next month, the Minnesota Supreme Court will hear oral arguments in Knapp v. Commissioner of Public Safety. The issue raised is central to the validity of all DWI breath test cases. It involves the observation period required by law enforcement before a person arrested on suspicion of DWI submits to an evidentiary breath test. In Knapp’s case, the defense attorney challenged whether the Attorney General’s Office established foundation for the breath test result with a proper observation period.
Officers are trained, and are required to follow their training, to observe a person who is about to submit to an evidentiary breath test for at least fifteen minutes before they take the test to see if the person belches, burps, vomits, or otherwise has anything going on with the orifice below their nose and above their chin that could create mouth alcohol and impact a breath test result. Through their training, officers are supposed to enter when the observation period begins before they can start the DataMaster breath test device.
In Knapp’s case, the observation period began while the officer was in the front seat of his squad car and Knapp was sitting in the backseat. The officer said he was watching Knapp through the rearview mirror. He, then walked Knapp into the jail and a correctional officer ended up administering the evidentiary breath test to Knapp. At the implied consent hearing, the deputy’s body camera footage was submitted that contradicted his testimony. On the video, it shows the deputy was not close enough to Knapp to detect burping or belching as Knapp’s face was shielded from his view.
The district court rescinded Knapp’s driver’s license revocation because the evidence raised questions about the reliability of the breath test results. The court noted that the record did not establish continuous observation of Knapp. The Minnesota Court of Appeals disagreed. It determined the commissioner satisfied their prima facie burden to establish the breath tests were reliable and admissible by introducing evidence that the breath test operator was certified and the diagnostic checks showed the device was in working order. And, the court of appeals noted that it is improper for a district court to rescind a revocation based solely on evidence of an imperfect or improper observation period without evidence the driver ingested something or otherwise experienced a bodily function that could impact the test results.
The battle at the Minnesota Supreme Court will primarily be over who has the burden of showing a proper observation period – the alleged drunk driver or the attorney general trying to uphold a driver’s license revocation. Knapp’s attorney argues that complying with training is obviously a requirement of the “certified operator” element of a prima facie foundation. And, that for a test to be admitted into evidence, the prosecution must establish all procedures necessary to ensure an accurate and reliable test were followed.
Based on recent Minnesota appellate court decisions in DWI cases, were are not very optimistic the defense will prevail on this one. Hopefully, the supremes surprise us. Otherwise, paying close attention to observation periods will become a joke.
Robert H. Ambrose is a criminal defense attorney and DWI lawyer in Minnesota and Wisconsin. Super Lawyers named him a Super Lawyer for the past four years and a Rising Star in the preceding six years. He is an adjunct professor at the University of Minnesota Law School. Criminal Defense Attorney Woodbury, Criminal Defense Lawyer Wisconsin, DWI Attorney Minnesota.