Perhaps the most common way the police try to find evidence that someone was driving under the influence is through the use of Breathalyzer and breath tests. When someone blows over the Ohio legal limit of .08, he or she can be charged with OVI / DUI per se, which in essence means that it doesn’t matter if your driving was perfect — you are deemed to be in violation simply by virtue of having that percentage of alcohol in your blood.
However, breath tests are far from perfect and there are numerous factors that can cause a breath test machine to give an inaccurate reading. If you’ve been charged with OVI / DUI based on the results of a breath test, an experienced OVI / DUI attorney may be able to help you fight the charge.
How Breath Tests Work
The types of breath tests that are admissible in court in Ohio predominantly use infrared technology to calculate your blood alcohol content. You’re asked to blow into the machine for as hard and as long as you can to capture the breath from deep inside your lungs where there are the most blood vessels. Alcohol passes through the walls of your blood vessels into your lungs, and the idea behind the breathalyzer is that the breath from the depth of your lungs comes closest to reflecting the alcohol content of your blood. The breathalyzer machine uses infrared wavelengths to detect alcohol molecules and is programmed to calculate your BAC.
The Ohio Department of Health is responsible for approving the breath test machines that can be used for evidentiary purposes in the state. Currently, the breathalyzer machines approved for use in Ohio that produce results that are admissible in court are the BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm; Intoxilyzer 5000 series 66, 68, and 68 EN; and the Intoxilyzer 8000.
Law enforcement officers in the field also may use handheld breath test devices but the results of those are not admissible as evidence of an OVI / DUI offense.
Ohio Regulations for Breath Tests
To be valid, a breath test administered in Ohio has to comply with certain laws and regulations that govern when a test can be administered to a suspected intoxicated driver, how the samples are analyzed, how the results are recorded, and how the machine is maintained and calibrated. When these rules aren’t followed, a good OVI / DUI defense lawyer may be able to convince a judge to rule that the results can’t be used in court.
Some key regulations involving breathalyzer machines are:
- Breath tests have to be administered within three hours of when you are alleged to have driven under the influence
- You must be observed for a mandatory 20 minutes before the breath test
- The samples must be analyzed according to the machine’s operational checklist
- A proper instrument check must be performed every seven days to ensure the machine is in proper working order
- The instrument check has to follow procedures and meet specific parameters described in the Ohio Administrative Code
- The person performing the test has to be a valid senior operator or operator as described in the Ohio Administrative Code
Breath Test Defenses
There’s a perception that breath tests are a reliable way to determine if someone is over the legal limit for blood alcohol content, but in fact there are any number of ways that these tests can give readings that are inaccurate. An experienced OVI / DUI defense lawyer may be able to challenge your breath test results on one or more of the following bases:
- Improper Testing — When the test isn’t performed using the proper and mandated procedures, the results may be inaccurate. For example, if no one observes you for the mandatory 20 minutes before your breath test and you burp or vomit before the test, you may have a higher concentration of alcohol in your mouth than is actually in your blood, and the test results would be skewed.
- Improper Calibration — If the machine isn’t correctly calibrated, the results may be inaccurate. Your attorney can argue that the results from an incorrectly calibrated breathalyzer should not be used as evidence against you.
- Inadequate Record-Keeping — There are specific regulations about what forms should be used to record test results and machine calibration, and how long records should be kept. When records aren’t kept in accordance with the regulations, it may be impossible to determine whether the test was administered properly or that the machine was correctly calibrated. A lack of records may call the test results from that machine into question.
- Improper Operator — Only qualified people are supposed to administer breath tests. If the machine operator wasn’t properly trained or didn’t have the right certifications or permits, the test results may be called into question.
- Radio Frequency Interference — Breathalyzer machines can be subject to interference from police radios. Machines should be checked for radio frequency interference using the type of radios used by the law enforcement agency where the test is administered. If a radio frequency interference check was not performed, the test results may be invalid.
- Medical Conditions — Some medical conditions such as acid reflux can cause your test results to register a higher BAC than you actually have because the machine is detecting alcohol from your stomach on your breath. Alcohol that is still in your stomach does not contribute to drunkenness or impairment and shouldn’t be factored into your BAC.
- Intoxilyzer 8000 Issues — Serious questions have been raised about the reliability of the Intoxilyzer 8000 in the past couple of years, not only in Ohio but also in several other states where the machine is used. One problem with the machine is that it can’t distinguish between breath collected from your mouth or your lungs, and breath from your mouth could result in a higher BAC reading than is accurate. The machine also uses an arbitrary ratio to calculate BAC that doesn’t reflect the reality of how alcohol affects most people. There have been a number of legal challenges to the Intoxilyzer 8000, and some judges in the state have agreed that the machine is unreliable — which may open a door to question the general reliability of the breath test machine when prior case law has disallowed that type of challenge. The future of this machine’s use in Ohio is very much up in the air. Franklin County is one of the few counties in the state that doesn’t use the machine, but it currently is used in other counties in Central Ohio.
At Luftman, Heck & Associates, we can help you confront the Ohio criminal justice system from your arrest through to your trial. By advocating for your rights and thinking strategically about your case defense, we will maximize your chances of obtaining a positive case result. If you’ve been charged with OVI, call us today for a free and confidential consultation of your case.
Charged with DUI in Columbus? Contact Us.
If you’ve been charged with a OVI / DUI, it’s important to know what you’re up against. If you have any questions left unanswered by this page, or if you need a competent, experienced Columbus DUI attorney to fight for you in court, please contact us at (614) 500-3836 or via email at [email protected].