Cincinnati DUI / OVI Lawyers
Once placed under arrest for OVI, you will be asked to submit to a chemical test to determine your Blood Alcohol Concentration (BAC). The most common method to test and measure BAC is with a breath test. Unlike the portable breath test machine that is carried in the police cruiser, the machines used at police stations in the state of Ohio have been deemed by the legislature as 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 BAC. Ohio currently uses three machines, the DataMaster and the Intoxilyzer 5000 or 8000, to measure BAC.
Regulated by the Ohio Department of Health, the machines must be maintained in the following ways:
- Records must be maintained regarding service checks and repair orders
- The machine 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.
Our Cincinnati DUI / OVI attorneys at The Law Offices of Steven R. Adams, LLC strongly encourage you to refuse to submit to any requested breath test. Due to the inherent errors of testing and legal restrictions on challenging false positive results, you should not submit to a breath test.
Need criminal defense for DUI / OVI? Call us at (513) 929-9333 today!
HOW BREATH TESTS ARE ADMINISTERED
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 law also requires the breath test to be conducted by a senior operator trained in the mechanics and operation of the breath testing machines.
The senior operator must do the following:
- Observe you for at least twenty minutes prior to administering a breath test.
- Confirm no objects, including chewing tobacco, gum, mints, or even water, entered your mouth during this observation period.
- Conduct the breath test 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.
COMMON CHALLENGES OF POSITIVE BREATH TEST RESULTS
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 Council. This is especially important since it is currently impossible to effectively challenge the results of a breath test in Ohio. Breath testing machines 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 also produce false positive readings.
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 machine 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 20-minute observation period
- 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
- 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 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 BAC 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. Our experienced OVI or DUI attorneys are able to cut through the boilerplate language.
DETERMINING BAC THROUGH BLOOD TESTS
Blood testing is often used when a person is taken to the hospital in lieu of the police station. This tends to occur after auto accidents when medical treatment is necessary. It is generally considered the most accurate form of testing for the presence of alcohol in the system. However, blood testing is not without problems. For example, only one sample of blood is taken from a person. Any problem with this sample ultimately destroys the state’s case. The Ohio Administrative Code details specific guidelines for the draw, storage, and testing of a blood sample.
The following are some common challenges used to defend clients charged with OVI or DUI after a positive blood test:
- Usage of a wipe containing alcohol prior to drawing blood
- The container is not sealed, labeled, or stored according to code
- Licensing and training issues with the person who tested the sample
- The sample was not drawn within three hours of the violation (not the arrest)
- Blood was not taken in compliance with the Ohio Department of Health requirements
- Defendant was coerced or forced into submitting to a blood test
Urine tests are typically requested if an officer suspects any drug use that may have led to impairment. Urine tests must be conducted and tested in compliance with specific guidelines detailed in the Ohio Administrative Code.
The following are some common challenges used to defend clients charged with OVI or DUI after a positive urine test:
- The sample is not collected, sealed, stored, or tested according to OAC requirements
- The same is not collected within three hours of the violation (not the arrest)
- The sample, when collected, was not witnessed
WHAT HAPPENS IF YOU REF-- USE TO TAKE A CHEMICAL TEST?
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 are reasonable grounds to believe you are under the influence of alcohol and/or drugs of abuse. Failure to submit to the requested chemical test results in an automaticAdministrative License Suspension. Police officers use this information as a scare tactic to convince people to submit to a blood, breath, or urine test.
If you refused one of these chemical tests, please contact our firm as soon as possible for immediate assistance.