Colorado DUI observation period requirements

Request Free Consultation

The arrest and defenses thereto

If you are arrested for driving under the influence in Colorado, you may feel that you are in a hopeless situation and that you might as well plead guilty. The truth is, though, that there are many defenses to DUI prosecutions, a good number of them revolving around the procedures used by the arresting officer and the evidence gathered therefrom, including the following:

The observation period requirements

It is worthwhile to examine this last defense, the observation period requirements, more closely. These requirements come from State Board of Health regulations. Specifically, the suspect is observed for 20 minutes, “closely and continuously,” before testing to make sure that the suspect neither takes nor expels anything by mouth, including belching.

In the seminal case of Barone v. State, decided in 1987, a person was arrested for DUI and, while being taken to the local police station, was watched by the arresting officer in the vehicle’s rear-view mirror. At the station, the arrestee was seated by the officer and, during this time, used a nearby phone. The officer later testified that he kept the arrestee in observation closely and continuously for 33 minutes between the arrest and the use of the testing machine.

The trial court, which ruled in favor of the defendant, stated that the officer had to maintain face-to-face observation during the observation period, staring fixedly at the arrestee, but the appellate court reversed this ruling, saying that this interpretation of the regulation was rigid and unreasonable. The court stated, “[Where] … the evidence … clearly establishes that an arrested person was constantly within the immediate presence, personal control, and custody of the police for a given period of time, it is reasonable and proper to determine that the arrested person was within the officer’s ‘close and continuous observation.’”

The lesson to be learned from this case is, in the situation where a person is ever arrested for DUI, the arresting officer, while not required to stare at the arrestee’s face for 20 minutes, must keep the suspect within his or her presence, and must be observing the suspect on some general level while the suspect is in the officer’s presence. If the officer leaves the room, or diverts his or her attention to some other object or person, the argument can be made that he or she is not following the required observation period requirements.


If you are arrested for DUI, and you believe that the arresting officer did not follow the required observation period requirements, as described above, you should immediately contact an experienced DUI attorney, who will investigate the facts of your situation and determine whether you have a viable defense to the charges filed against you.