OVI / DUI ‘Per Se’ Defenses In Ohio

Defenses For Accusations Of DUI / OVI ‘Per Se’ In Ohio
In Ohio, it is per se (“by itself”) illegal to operate a vehicle with a prohibited concentration of alcohol and/or drugs in the driver’s breath, blood or urine.  If a driver’s alcohol or drug level is ‘over the limit’ while operating a vehicle, the driver is guilty of DUI / OVI ‘Per Se’, even if the alcohol and/or drug(s) did not impair the driver’s ability to operate the vehicle.

To prove the driver’s alcohol and/or drug level was ‘over the limit’, the prosecution will introduce the results of a breath test, blood test, or urine test.  The defenses to DUI / OVI ‘Per Se’ generally aim to exclude the test results from evidence or explain why the test results were inaccurate.  

Top 50 Defenses To DUI / OVI ‘Per Se’ In Ohio
The Dominy Law Firm lawyers represent clients charged with DUI / OVI in Columbus and Central Ohio.  Our lawyers developed The Top 100 Ohio DUI / OVI Defenses ©:  a list of the top, but not all, defenses.  Half of those defenses relate to the charge of DUI / OVI ‘Impaired’, and half of those defenses relate to the charge of DUI / OVI ‘Per Se’.  Some of the defenses for ‘Per Se’ charges are asserted in cases involving breath tests, some of the defenses are used in cases involving blood/urine tests, and some defenses apply to all three types of tests.  The top 50 defenses for DUI / OVI ‘Per Se’ are listed below.  

Breath Tests
1.      Test result does not prove BAC was ‘over the limit’ at the time of operating the vehicle due to rising BAC
2.      Driver’s breath temperature was not measured, and breath temperature changes result of test
3.      Driver’s breathing pattern affected test result
4.      Cell phone in area of breath test caused radio frequency interference
5.      Breath-testing machine plugged into outlet with other electrical devices
6.      Driver had foreign substance in mouth at time of breath test
7.      Medical condition affected accuracy of test
8.      Ambient air contained alcohol which inflated test result
9.      Breath-testing machine not properly maintained
10.    Officer did not conduct 20-minute observation period before test
11.    Invalid sample not followed by 20-minute observation period
12.    Records for breath-testing machine not maintained for three years
13.    Instrument check not performed every seven days
14.    Instrument check did not yield valid result
15.    Radio frequency interference check not performed every seven days
16.    Instrument check solution used beyond expiration date
17.    Instrument check solution not refrigerated when not in use
18.    Instrument check solution container not retained for prescribed period
19.    Breath test operator did not have valid permit
20.    Breath-testing machine senior operator for maintenance did not have valid permit
21.    Breath-testing machine not in proper working order

Blood & Urine Tests
22.    No search warrant and no exception to search warrant requirement
23.    Defective search warrant
24.    Procedure manual for test not on file in analytical testing area
25.    Procedures used by laboratory not scientifically valid
26.    Procedures for analytical testing not followed
27.    Technique used for testing not approved by Ohio Department of Health
28.    Instrument(s) used for testing were not calibrated daily
29.    Instrument(s) used for testing failed calibration
30.    Laboratory records not maintained for prescribed period
31.    Sample not refrigerated when not in transit
32.    Sample not sealed and labeled as required by Ohio Department of Health
33.    Chain of custody for sample not properly documented and retained
34.    Sample not retained for additional testing
35.    Laboratory did not successfully complete national proficiency testing program
36.    Analyst did not have a valid laboratory technician or director permit
37.    Laboratory report inadequate
38.    Medical condition affected result of test
39.    Medication affected result of test
40.    Analyst error in testing sequence
41.    Instrument used for testing has internal contamination
42.    Balance instruments not calibrated
43.    Internal standards, standards, and controls invalid
44.    Uncertainty in measurement not calculated
45.    Mass spectrometer spectral library used for confirmation invalid
46.    Blood draw not conducted by qualified individual
47.    Blood draw not conducted with sterile dry needle into vacuum container
48.    Blood collected in container without solid anticoagulant
49.    Urine sample not collected in accordance with Ohio regulations
50.    Urine alcohol level at time of operating vehicle was below the ‘legal limit’ due to pooling of alcohol in urine

Law Firm For DUI / OVI ‘Per Se’ Cases
The lawyers at the Dominy Law Firm understand how to present defenses related to DUI / OVI ‘Per Se’.  If you are seeking representation for this type of case in Columbus or Central Ohio, a free phone consultation can be arranged by completing a CONTACT FORM or by calling our office at 614-717-1177.


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