FAQ - Breath Testing
Q: What is a breath test and how does it work?
A: A breath test is a test given by law enforcement officers to determine a driver’s blood alcohol concentration (BAC), which is the level of alcohol present in an individual's blood. Alcohol content in the breath is measured to indirectly determine the BAC level. Individuals blow into a breath test machine, and infrared energy is transmitted through the breath sample. Alcohol molecules absorb the infrared energy, and the machine measures the amount of infrared energy absorbed. Based on this, the machine calculates the concentration of alcohol in the breath sample and prints the result on an evidence ticket.
Q: Why do law enforcement officers use breath test machines?
A: Law enforcement officers use breath tests when they suspect a driver is over Ohio’s BAC limit. Breath tests are often used rather than blood tests because breath tests are more convenient and less intrusive. In Ohio, an individual may be charged with operating a vehicle under the influence when alcohol impairs driving ability(DUI /OVI “impaired”), and an individual may also be charged with operating a vehicle with a prohibited concentration of alcohol (DUI / OVI “per se”). The charge for breath test results at or above .080 (but under .170) is DUI / OVI “per se, low test”. The charge for breath test results at or above .170 is DUI / OVI “per se, high test”.
Q: What kinds of breath test machines do law enforcement officers use?
A: There are three machines approved by the Ohio Department of Health: (1) the BAC Datamaster; (2) the Intoxilyzer 5000; and (3) the Intoxilyzer 8000. All three machines are used for DUI / OVI cases in Columbus and central Ohio. Results from these three machines are admissible in court and can be used as evidence in DUI / OVI cases, as well as Vehicular Homicide cases and Vehicular Assault cases. Law enforcement officers may also use a portable breath test (PBT) when they suspect a driver is intoxicated, but results from a PBT are not admissible in court as evidence in a DUI/OVI case.
Q: Are there rules that law enforcement officers must follow when they administer breath tests?
A: Yes. Ohio has statutes, regulations, and case law regarding the use of breath test results as evidence in court. Primarily, the law says that a breath test must be given within three hours, and the test must be analyzed according to methods approved by the Department of Health. The Department of Health has many regulations pertaining to breath test machines. These regulations include rules about: (1) the maintenance of breath test machines; (2) the administration breath tests; (3) how records of breath test machines are kept; (4) checking the accuracy of the machines; and (5) issuing operator permits.
Q: What can a DUI / OVI attorney do with breath test results?
A: A DUI / OVI attorney can review the records maintained by a law enforcement agency for any case. The attorney should determine what type of breath machine was used, review how the breath test was administered, and check the maintenance records for the breath test machine used. If a law enforcement agency does not maintain, repair, and use the breath-testing machine in compliance with Department of Health regulations, the result of the breath test may be inadmissible ("thrown out") so the results cannot be used as evidence in court for a DUI / OVI case.
My practice is focused on DUI / OVI defense, I am certified in breath testing, and I represent clients that are contesting DUI / OVI charges in Columbus and central Ohio. For more information about me, please see my profile, and for 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, EMAIL ME or call me at 614-717-1177 to arrange a free consultation.