Home What you need to know The breathalyzer test in Ohio: Knowing your rights

The breathalyzer test in Ohio: Knowing your rights

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In Ohio there are two instances where you can be given a breat test by a police officer. The first, the portable breath test, is generally administered during the initial traffic stop. Here’s what you need to know: This test is never mandatory and is not admissible in the court of law. Taking this test and failing will only lead to more evidence against you if you’re charged with OVI/DUI. There is no reason to consent to the portable DUI test.

If you fail this test, the officers will arrest you and take you back to the station to do another breath test on an approved device. Currently, there are two approved breath-testing devices in Ohio – The BAC Datamaster and the Intoxilyzer 5000. At this time you will be told you can blow or refuse. A refusal to blow at this point will be an automatic suspension of your license for a year and could have other repercussions if you have a CDL. If you choose to blow and are above the Ohio legal limit of .08, you will be charged with an OVI/DUI and booked. More importantly, if you are booked and have blown above .169 you will be charged with a Super DUI. It’s important to assess your own condition at this point.

Refusing to blow or blowing above the legal limit does not mean that you don’t have a chance to be found not guilty or have your charges reduced.

In the last year we’ve had two situations at Taubman Law where drivers have refused to take the breathalyzer at the station and another case where the driver blew above .169 in the station. We were able to work with each case and ensure the best result possible.

In first one, in Berea, the driver was pulled over for following too closely and submitted to a field sobriety test, which he failed. After a motion to suppress, we were able to get the charges knocked down to a reckless operation, our client was able to get his license back within nine months and was granted occupational driving privileges as soon as the statute allowed.

In another case,  we represented a person stopped in Vermillion for weaving and driving erratically. He failed his field sobriety tests and refused to take a breathalyzer. We were able to have his charges reduced to physical control, which carries no points and the client was allowed work privileges.

Finally, in a case where one of our clients blew above .169 and was charged with a Super DUI in Bedford, we were able to work a good plea accommodation. Charges were reduced to regular DUI and the client didn’t have to go through the embarrassment of having yellow ‘party’ plates or having an ignition lock. The client also served no days in jail and received driving privileges.

That’s all for this time. Feel free to ask a question in the comments field or contact me at briantaubman[at]taubmanlaw.net for more information. If you’re interested in my firm, Taubman Law, visit us at TaubmanLaw.net.

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  1. Kopchony,

    It depends on what your site does. We’re here to educate about the laws of DUI/OVI in the state of Ohio. If you have a mission on par with that, we’d be happy to add you to our blog roll.

  2. My daughter (age 22) was charged with DUI last night in Dayton, OH. After leaving a work xmas dinner/party, she spun out on a highway ramp, apparently hit the guard rail, a pole, who knows? The cops pulled her over, cuffed her, took her to the police station. She blew .2 (not sure where). First time for a DUI but already has 10 pts on her license. She just moved to Dayton after college to accept a position at a chemical co (degree in biochemistry). Any suggestions? Willl she get driving privileges? Thanks.

  3. my question is this, i was told by a police officer that he pulled over a person for weaving back and forth, the guy refused to take the breath test till his lawyer was present, after calling his lawyer the lawyer took 4 hours to get there and by the time he got there the guy was sobered up and they could not charge him with an OVI/DUI because he blew well under the legal limit or blew zero i forget what he said. the only thing they could charge him with was reckless op for weaving. is this possible or legal i guess ?

  4. Hello.
    This took place quite sometime back, and the Ohio limit then was .1 vs the current .08. I was pulled over for speeding and passed all field sobriety tests, but was taken to the local station (Highway Patrol) non the less. There I was asked to blow into their machine there. After doing so, the officer was looking at the results (on the other side of the machine facing away from me) and seemed not satisfied with the results. He then told me to blow again, only harder. I did so and registered a .1 something, that put me over. Should I have refused to “blow again” having already done so? Looking back, I feel like I was blowing till he got the result he wanted.

  5. what is the time frame to take a breath test i was 2 hours an 2 mins when i did it Im a retired police officer for the state of ohio and it was 2 hours

  6. My 20 yr old son was in a vehicle that was pulled over by the police. The driver was 22 and blew a .09 or .1 and my son blew a .082. He was then handcuffed, taken to the station and charged with a misdemeanor. Did he need to be informed of his rights before blowing? He is a student and goes to school in Ohio but is from Illinois.

  7. Hi-My son was arrested last night for OVI in Hamilton County, Ohio. He “told” me he passed the field tests and then was asked to take the breathalyzer in which he blew .09. He also admitted to drinking earlier in the evening. He was also on probation for doing stupid spray painting and had like 2 months left on probation. He is in school and has a great job at a hospital. Is this going to ruin everything he has worked for? Is the public defender as good as another attorney? UGH, thanks- from a “sick at my stomach mother”

  8. My daughter was recently issued a summons for underage drinking at college in Urbana, Ohio. She was given a breathalyzer test several times on a portable breathalyzer. When she was issued her appearance ticket, the officer put her name at on the summons, but in the story he put a second persons name with the portable breathalyzer test reading. I have two questions. First is the use of a portable breathalyzer reading admissible in court? And, if the officer mixed up her reading with another persons is the summons valid?

  9. My husband and I had a few drinks at the bar. He got pulled over for “peeling” which never even happened. The cop admitted he was watching us in the taco bell parking lot and that he was planning on pulling us over. My husband asked if he could call his lawyer when the cops said he looked like he’d been drinking. They refused to allow it. They did some kind of sobriety test that he passed even though he has a lazy eye. He refused to take a breathalyzer before talking to a lawyer which they refused to allow. They also never read him his rights and took him to jail. What can we do to get his license back? Any advice? He is supposed to start a tow truck driving job on monday and he has court on monday.

  10. My boyfriend got stopped by the police. They are trying to get him on an OVI. He passed the sobriety test, and both breathalyzer tests came back as zeros. They then wanted a urine test, but he just told them that they might as well lock him up since that is what they were trying to do anyway. Maybe he shouldn’t have said that comment, but isn’t over-testing against his rights? I need some input on this. Can anybody help?

  11. My suggestion would be to get a lawyer, A CDL is tough to keep if you have been charged with an OVI. Feel free to call my office at 2166210794

  12. my question is that i blew UNDER the legal limit of .08 was no given a blood test or urine screening. However, the police officer still charged me with an OVI because he said to him I was intoxicated. How is his legal and how should i proceed from here. Thank you

  13. If you have not had an alcoholic drink and plead the 5th at a checkpoint do you still have to take a breathalyzer test when they do not have reasonable suspicion? Or will your license still be suspended for a year just for refusing?

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