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, there is a separate offense of operating a vehicle under the influence).  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 .08 (but under .17), the officer will charge you with DUI / OVI "per se".  If the result is at or above .17, the officer will charge you with DUI / OVI "per se, high test".  There are different mandatory penalties associated with these offenses.

How Breath-Testing Machines Work

When you blow into the breath-testing machine, infrared energy is transmitted through the chamber containing the 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 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 that 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. 

New Case May Change Ohio Law For Breath Testing In DUI/OVI Cases

In 2013, a 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 may change the interpretation of Ohio law for breath testing in Ohio DUI / OVI cases.  I was defense counsel in this case, and you can read more about the case on MY BLOG.

Strategies For Ohio DUI / OVI Cases With Breath Tests

A DUI / OVI 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").  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

My practice is focused on DUI / OVI defense, and I am certified in the Basic Science Of Evidential Breath Alcohol Testing.  For more information about me, please see my profile, and for more details about my practice, please see the firm overview.  You can also see what clients say and review my past case results.  I limit the number of cases I accept so I can provide outstanding service to my clients.  If you would like to discuss how I can help with your DUI / OVI case, EMAIL ME or call me at 614-717-1177 to arrange a free consultation.