Breath Tests

DUI / OVI Charges In Columbus And Central Ohio Based On Breath Tests

Ohio law makes it illegal to operate a vehicle with a prohibited amount of alcohol in your breath, even if the alcohol is not impairing your ability to drive. If your ability to drive is impaired by alcohol, you may be charged with the separate offense of OVI 'impaired'. If a police officer suspects you are over the limit, the officer may ask you to submit to a breath test. If the result is at or above .080 (but under .170), the officer will charge you with DUI / OVI 'per se'. If the result is at or above .170, the officer will charge you with DUI / OVI 'per se, high test'. Ohio has different mandatory penalties associated with these breath test offenses.

You can learn more about breath-testing and other Ohio DUI/OVI topics in Shawn Dominy's book, 'I Was Charged With DUI/OVI - Now What?!' That book is for sale in online bookstores, and the e-book version can be downloaded for free using the download form on the right side of this screen.

DUI/OVI Attorney With Training In Breath Testing

Shawn Dominy is trained in breath testing. His training includes the course 'Basic Science Of Evidential Breath Alcohol Testing'. The course was presented by the manufacturer of the BAC Datamaster; the most commonly used breath-testing machine in Ohio DUI/OVI cases. After the course, he purchased a Datamaster so to experiment with it. The course is no longer offered, and there are very few Ohio DUI/OVI attorneys who completed it.

How Ohio Breath-Testing Machines Work

The breath-testing machines used in Ohio DUI/OVI cases use infrared spectroscopy. When you blow into the machine, infrared energy is transmitted through the chamber containing your breath sample. Alcohol molecules absorb infrared energy, so the machine measures the amount of infrared energy absorbed. Based on the amount of infrared energy absorbed, the machine calculates the concentration of alcohol in the breath sample. The machine then prints the result on an evidence ticket, with the result expressed in grams of alcohol per 210 ml of breath.

Breath-Testing Machines Used For DUI / OVI In Ohio

Breath-testing machines must by approved by the Ohio Department of Health. Currently, there are three approved machines: (1) the BAC Datamaster; (2) the Intoxilyzer 5000; and (3) the Intoxilyzer 8000. Police officers also use portable breath testers (PBT) at the scene of Ohio DUI/OVI investigations, but the results of those portable breath testers are not admissible in court.

Ohio Law For Breath Tests

Ohio has statutes, regulations, and cases regarding the use of breath tests as evidence in court. The statutes say, in a nutshell, that the breath test must be administered within three hours of vehicle operation and must be analyzed according to the methods approved by the Department of Health. The regulations by the Department of Health contain rules for maintaining breath-testing machines, checking the accuracy of the machines, administering breath tests, issuing operator permits, and maintaining records.

Case law contains decisions by courts interpreting the statutes and regulations. The most curious Ohio case regarding breath testing is the 1984 case of State v. Vega, which held a defendant may not make a general attack on the reliability and validity of the breath-testing machine. Many Ohio courts have interpreted Vega to prohibit any defense regarding the accuracy of the breath test result.

Ground-Breaking Case For Breath Testing In Ohio DUI/OVI Cases

In 2013, Shawn Dominy was defense counsel in a ground-breaking breath-testing DUI/OVI case. In that case, an Ohio Court concluded that, although the Intoxilyzer 8000 is presumed to be reliable because it was approved by the Department of Health, the defense proved that the Intoxilyzer 8000 is not reliable, so the results of breath tests on those machines are not admissible as evidence.

In reaching this conclusion, the Court analyzed the misinterpretation of the Vega case by many other courts. The Court concluded that a defendant may attack the reliability of the specific testing procedure and the reliability of the particular equipment used to administer the breath test. This case is one of a series of opinions which are reshaping the law for breath testing in Ohio DUI / OVI cases. As Shawn Dominy was defense counsel in this case, you can read more about the case on his BLOG.

Strategies For Ohio DUI / OVI Cases With Breath Tests

A good DUI / OVI attorney may make a difference in cases involving breath tests. First, the attorney can review the records maintained by law enforcement. If law enforcement agencies do not maintain, repair, and use the breath-testing machine in compliance with state regulations, the results of the breath test may be inadmissible ("thrown out"). Second, if the breath test is not thrown out, a DUI/OVI attorney can seek to show that the breath test result was inaccurate due to problems with the testing procedure and problems with the machine, as well as the health conditions and other circumstances of the client.

Attorney For DUI / OVI Breath Test Cases In Columbus And Central Ohio

The Dominy Law Firm is focused on DUI / OVI defense, and Shawn Dominy has expertise in the area of breath alcohol testing. For more information about Shawn Dominy, please see his profile, and for more details about the Dominy Law Firm, please see the firm overview. You can also see what clients say and review past case results.

Shawn Dominy limits the number of cases he accepts so he can provide outstanding service to his clients. If he does not accept your case, he may be able to connect you with an attorney he is mentoring or another DUI defense law firm. If you would like to discuss how the Dominy Law Firm can help with your DUI / OVI case, EMAIL US or call 614-717-1177 to arrange a free consultation.