Once placed under arrest for OVI or DUI, you will be asked to submit to a chemical test to determine the Blood Alcohol Concentration (BAC) in your system. The most common method to test and measure BAC is the Breath Test. Unlike the Portable Breath Test device which is carried in the Police cruiser, the machines used at Police stations in the state of Ohio have been deemed by the legislature a reliable tool to measure BAC and are admissible in Court. While this method is the most common means of testing, it is also the least accurate means of measuring Blood Alcohol Concentration.
When applying for a driver’s license in Ohio, every person signs a document stating he or she will submit to a chemical test, when requested to do so by a Police Officer, if there is reasonable grounds to believe you are under the influence of alcohol and/or drugs of abuse. Implied Consent. Failure to submit to the requested chemical test results in an automatic Administrative License Suspension lasting anywhere from one year to five years, depending upon the number of prior refusals and previous OVI or DUI convictions. Police Officers use this information as a scare tactic to convince people to submit to a blood, breath, or urine test.
Ohio currently uses two machines, the Datamaster and the Intoxilyzer 5000, to measure Blood Alcohol Concentration. The Intoxilyzer 8000 is awaiting approval to be put into departments as another device to measure BAC. The machines are regulated by the Ohio Department of Health. Records must be maintained regarding service checks and repair orders. The instrument must be checked with a special solution no less than once every seven days. The solution has to be refrigerated when not in use and can only be used for three months before switching to a new solution. Records regarding calibration checks must be readily available for inspection.
The Police Officer conducting the traffic stop is not necessarily the same Officer who will ask you to submit to a breath test. Ohio law requires the breath test to be conducted by a Senior Operator trained in the mechanics and operation of the breath testing devices. The Senior Operator must observe you for at least twenty minutes prior to administering a breath test. The Senior Operator must confirm no objects, including chewing tobacco, gum, mints, or even water, entered your mouth during this observation period. The breath test must be conducted no more than three hours from the time of the violation (not the arrest). This is especially important in cases involving auto accidents, since the Officer was not at the scene at the time of the actual violation.
Prior to consenting or refusing to take a breath test, the Police Officer has to read the Administrative License Suspension form to you. This form must be read in the presence of another person and a copy needs to be provided to you. The form explains the consequences of a refusal to submit to a chemical test and a prohibited BAC result. The language in the ALS form explains your right to have an independent chemical test of your choosing taken at your own expense.
Ohio is different from most states in that the law only requires the administration and performance of one breath test. A second breath test to ensure agreement between results is not mandated by law, even though it is recommended by NHTSA and the National Safety Counsel. This is especially important since it is currently impossible to effectively challenge the results of a breath test in Ohio. Breath testing devices are far from perfect. They are subject to human error. Outside influences, including the presence of mouth alcohol, GERD, and radio interference from cell phones or portable radio units, can produce false positive readings. The attorneys at The Law Office of Steven R. Adams strongly encourage you to refuse to submit to any requested breath test. Due to the inherent errors of testing and inability to effectively challenge false positive results, you should not submit to a breath test.
The following are some common challenges used to defend clients charged with OVI after a positive breath test:
- Operator error or no Senior Operator used to perform the breath test;
- Not following directives included in the Ohio Administrative Code, such as failure to keep updated records for the machine, failure to properly store a current solution for an instrument check on the machine, and failure to perform an instrument check of the breath testing device at least once every seven days;
- Presence of certain health conditions, including GERD (Gastroesophageal Reflux Disease), diabetes, bleeding sores inside the mouth, and acid reflux;
- Usage of certain industrial strength cleaning solvents during the previous few days which may have absorbed into the skin, blood, or lungs;
- Belching, no matter how subtle, or regurgitation/vomiting during the twenty minute observation period;
- Failure to observe the defendant for at least twenty minutes prior to the breath test;
- Failure to check for the absence of any objects in defendant’s mouth;
- Consumption of some other substance containing alcohol, such as cold medicine, cough syrup, or breath fresheners;
- Presence of dentures, dental caps, or dental bridges which can trap alcohol in the mouth;
- Presence of mouth alcohol;
- Elevated breath and/or body temperature;
- Blowing too hard or too long while performing the breath test;
- Any radio frequency interference from, for example, portable radio units and/or cell phones;
- Defendant consumed alcohol after, not prior, to driving; and
- Defendant was coerced or threatened into submitting to a breath test.
It is possible and likely that you will be charged with an OVI or DUI even if your Blood Alcohol Concentration is found to be less than .08. In fact, Police Officers tend to charge individuals under the guise of impairment and will word all narrative documents to reflect this information. Experienced OVI or DUI attorneys are able to cut through the boilerplate language. If you find yourself in the unfortunate predicament of an OVI or DUI arrest, contact The Law Office of Steven R. Adams immediately for assistance.
