Client was arrested and charged with DUI and failed a breath test.  The driver, a professional sales manager in his mid-50's, relied on his license for travel throughout the Midwest.  A suspension of his license would have been detrimental to his job performance and prevented him from renting cars when traveling.  We challenged the procedure used during the 20-minute "deprivation" period in which the officer observes the suspect prior to the breath testing at the station.  The rules require the officer to keep the driver in his immediate presence and observe the suspect to ensure he or she does not burp, belch, vomit, or otherwise put items in his mouth.  This process ensures the "mouth alcohol" has fully evaporated and no contaminants like gum, mints, or chew have been consumed.  Any foreign items in the mouth cavity can result in a improper reading. 

In this case, the officer testified he started the "deprivation period" while the client was seated in the backseat of the police cruiser while enroute to the station.  The issue in this instance is that the client could have burped or belched or otherwise brought up fluid from his stomach during this drive to the station.  The officer could not determine whether this occurred due to his position in the car and the fact he is looking at the road and not at my client. The officer did not follow the strict protocol required by the Kansas Department of Health (KDOH).  My client testified that he did in fact belch during the drive to the station.  The officer, to his credit, admitted this "could have occurred" but did not see or hear it.  Therefore, the Judge ruled in favor of my client. 

We would not have taken this position if my client had not been present to testify. His testimony was critical in laying the foundation of our argument.  A burp or belch that occurred during the "20-minute deprivation period" would have required a new deprivation period to start over.  The officer testified he did not start a new period. Therefore, he did not follow the guidelines.  Suspension dismissed.