The Breath Test in Ohio
Ohio has judicially recognized rules and procedures to ensure the accuracy and reliability of the breath testing program. These rules and procedures can be found in the Ohio Administrative Code. Other rules that affect a breath test can come from departmental testing regulations, training procedures and operator’s manuals. Accordingly, an officer or department that ignores, skips or otherwise violates these administrative rules calls into question the accuracy and reliability of test results.
Most jurisdictions will allow a test in unless the alleged deviations from the rules raise substantial and legitimate questions about the breath test that prejudices the defendant. This is commonly referred to as the “substantial compliance test.” A good Ohio DUI law firm counsel can effectively use these deficiencies to create reasonable doubt as to the test.
O.R.C. 4511.19(D) sets out a three-hour limitation on the collection of your blood, breath or urine. This three-hour period begins at the time of the violation, not at the time of arrest. If the test is not conducted within the three-hour period it may be inadmissible to support a prosecution under O.R.C. 4511.19(A)(1)(b)-(i).
An important part of our investigation will be determining the time of the alleged violation and comparing that to the time of the breath test. This defense becomes especially important in single car auto accidents where neither the police nor any witnesses saw the accident occur. It is also relevant in a multiple car auto accident because the prosecutors often fail to subpoena the necessary witnesses to prove when the accident occurred.
O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise. Currently, there are two approved breath-testing devices in Ohio – the BAC Datamaster and the Intoxilyzer 5000. The Ohio Department of Health is investigating the use of the Intoxilyzer 8000, but it has not been approved for use as of yet.
For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. The Ohio Administrative Code requires the police agency to maintain three years of records.
A senior operator must perform the calibration of the device. In addition, the person suspected of driving under the influence must be observed for 20 minutes prior to taking the test. This observation period is to make sure that there is not any “oral intake” by the suspect. Some very effective defenses related to the observation period may be present.
Regarding the calibration of the machine, it must be performed no less frequently than once every seven days. If the state fails to demonstrate that the equipment was properly tested then there are clear grounds to have the test suppressed. Another example of the calibration requirement relates to the ethyl alcohol solution used to verify the machine is within +/- .005.
The solution used must not be older than three months from its first date of use and must be kept under refrigeration when not being used. In the investigation of the client’s case, the attorney should ask for the batch and bottle certificate to verify compliance with the Administrative Code.
The recent introduction of the intoxilyzer 8000 in Ohio has caused many problems. If you have used this machine, the possibility of beating your OVI is greater than normal. Contact us to discuss in more detail.