If you’ve been charged with drunk driving in Southaven, MS or other parts of Desoto County, one of the issues you may be facing is the breath test reading. Everyone arrested for DUI in Mississippi will be asked to consent to a test of either their breath, blood or urine. In Southaven, the standard procedure is the breath test. If you refused the test, then that is less evidence the state has against you and that could be good. But if you took the test and failed (a reading of .08 or higher) then you’re legally presumed to be intoxicated and if you want to have a chance to win the case you must challenge that breath test reading.

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One way is through the observation period. By law and by police procedure, you must be observed for a period of time before the test. This has to be done by law enforcement to make sure you aren’t smoking, vomiting, or putting anything in your mouth. Doing so could mess up the test results. Mississippi law requires a 15-minute observation period, but police guidelines and the breath machine manual state of 20-minute period. Courts typically go with the longer 20-minute period.

The observation time starts when you are arrested or are in the presence of a law enforcement officer. Unlike in some states, it doesn’t have to start when you’re brought to the station and sat down in the room to take the test. In Mississippi you can be arrested at the scene, placed in the back of the patrol car, then brought to the station for testing, and that whole time you were in route is part of the observation period.

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    Also, the officer doesn’t have to stare at you the whole time. Courts simply say that the defendant has to be “in the presence of” the officer. But there could be issues with whether you were properly observed, like if the officer is driving or filling out paperwork was his or her attention sufficiently given to you?

    So an important issue is whether it was a full 20 minutes. And it has to be a continuous 20 minutes. It can’t be 10 minutes, then a short break, then another 10 minutes. It’s got to be 20 minutes start to finish.

    The other issue is whether you were actually observed, or was the officer’s attention diverted at any point. Did the officer leave you alone for even just a minute or two? If the state can’t prove it was a proper observation procedure, that could be grounds to have the test results thrown out.

    DUIs are complex and can turn on what seem like tiny pieces of information. You never know what you’ll find once you start digging into a case. For help with your drunk driving charge, contact Southaven DUI lawyer Patrick Stegall at (901) 205-9894 or pstegall@stegall-law.com.

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