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Title 17 – Continuous Observation Period

JURY INSTRUCTIONS:Special Instructions

California Administrative Code of Regulations, Title 17. See also Davenport v. DMV (1992) 6 Cal.App.4th 133 at 142 (“…regulations shall establish the procedures to be used by law enforcement…”). V.C. §15. E.C. §403(a)(c).

You should consider whether or not the breath test was performed in accordance with the provisions of Title 17. The law defines “Shall” as “mandatory,” and “May” as “permissive.” The applicable provisions of Title 17 are as follows:

§1219 of Title 17 provides that “Samples taken for forensic alcohol analysis and breath alcohol analysis shall be collected and handled in a manner approved by the Department. The identity and integrity of the samples shall be maintained through collection to analysis and reporting.”

§1219.3 of Title 17 entitled Breath Collection requires: “A breath sample shall be expired breath which is essentially alveolar in composition. The quantity of the breath sample shall be established by direct volumetric measurement. The breath sample shall be collected only after the subject has been under continuous observation for at least fifteen minutes prior to collection of the breath sample, during which time the subject must not have ingested alcoholic beverages or other fluids, regurgitated, vomited, eaten, or smoked.”

You are not required to accept the results of a chemical test but should give it the weight, if any, to which you find it entitled. The result of a breath test must be disregarded if you find that correct scientific procedures were not followed.