Breath test results play a key part in Ohio OVI cases, and challenging the admissibility of these tests could make the difference between winning and losing an OVI case. However, knowing when it is legal to refuse a breath test, and what kinds of tests there are, takes time and research.
Cincinnati Attorney for OVI Breath Test Cases
If you’ve been arrested after a breath test, you need to contact an experienced defense attorney as soon as possible. The police can and will use the results of the breath test as evidence against you, despite the many cases of false positives.
The Wieczorek Law Firm, LLC, led by a former Ohio prosecutor since 2008, is ready to provide you the representation that you deserve. Mark Wieczorek serves all of Ohio, including Hamilton County, Butler County, Clermont County, Brown County, Highland County, Clinton County, Preble County, Scioto County, Greene County, Montgomery County, and Warren County, and Southern Ohio.
Contact Mark Wieczorek at (513) 317-5987 for a free initial consultation, or fill out our online contact form.
Overview of Breath Tests in Ohio
- Types of Breath Tests for OVI in Ohio
- What Are Defenses to Breath Test Charges in Ohio?
- Local Rules Relating to Breath Tests: Cincinnati Police Department Procedure 12.235
- Frequently Asked Questions
- Additional Resources
- Hire an Attorney for OVI Breath Test Cases in Hamilton County, OH
Types of Breath Tests for OVI in Ohio
Breath tests are commonly used in Ohio to measure blood alcohol concentration (BAC) in individuals suspected of operating a vehicle under the influence (OVI). These tests rely on analyzing the amount of alcohol in a person’s breath to estimate their BAC. The way this works is simple: a significant amount of calories burned by the human body exit leave via aspiration, e.g., breathing out. As a person drinks, the amount of alcohol in their system increases – as a result, the amount of alcohol aspirated via the circulatory system increases as well.
Ohio law recognizes two primary types of breath tests for OVI: portable breath tests (PBTs) and evidential breath tests (EBTs).
Portable Breath Tests (PBTs)
Portable breath tests are small, handheld devices used by law enforcement during roadside stops. These devices provide a quick estimate of a driver’s BAC and help officers decide whether further testing or an arrest is necessary. PBTs are often used to establish probable cause but are not admissible in court as evidence of a driver’s BAC.
While convenient, PBTs have limitations. They are less accurate than evidential breath tests and can be influenced by external factors such as environmental conditions, recent mouthwash use, or improper calibration. Because of these limitations, results from a PBT are considered preliminary and cannot be used to determine guilt in an OVI case.
Evidential Breath Tests (EBTs)
Evidential breath tests are conducted using larger, more sophisticated devices at a police station, detention facility, or other controlled environment. These tests provide legally admissible evidence of a driver’s BAC and are subject to strict regulations under Ohio law. The two most common EBT devices used in Ohio are the Intoxilyzer 8000 and the BAC Datamaster.
EBTs are considered more reliable than PBTs due to their advanced technology and controlled testing conditions. However, they are not without issues. For the results to be admissible in court, law enforcement must follow precise procedures outlined in the Ohio Administrative Code (OAC). These procedures include a mandatory observation period before the test to ensure the driver does not consume food, drink, or substances that could alter the results. Additionally, the device must be properly calibrated and maintained, and the officer administering the test must be certified.
What Are Defenses to Breath Test Charges in Ohio?
Improper Administration of the Breath Test
Ohio law requires a strict 20-minute observation period before administering a breath test to ensure nothing affects the results. Failure to meet this standard under OAC 3701-53-02 can result in the exclusion of test results in court.
Medical Conditions Leading to False Positives
Conditions like acid reflux, diabetes, and certain metabolic disorders can produce inaccurate breath test results. A skilled attorney may use medical evidence to demonstrate how these conditions impacted the test, undermining the prosecution’s case.
Lack of Probable Cause for Arrest
An OVI arrest must be supported by probable cause, such as erratic driving or evidence of impairment. If no valid reason for the arrest exists, the defense can argue for dismissal of the charges based on unlawful actions by law enforcement.
Faulty Breathalyzer Calibration
Breathalyzer machines must be calibrated and maintained according to strict schedules. A review of maintenance logs can reveal whether a device was functioning properly during testing. Any lapses in compliance can invalidate the test results.
Chain of Custody Issues
Evidence must follow strict documentation requirements from the moment it is collected. If the prosecution cannot prove a proper chain of custody for the breath test results, the evidence may be deemed unreliable and excluded.
Mouth Alcohol Contamination
Residual alcohol from mouthwash, dental work, or other sources can skew breathalyzer results. Demonstrating the presence of mouth alcohol can cast doubt on the accuracy of the BAC reading.
Overview of Breath Test Procedure
Probable Cause and Arrest
Before administering a breath test, officers must establish probable cause for an OVI arrest. This determination is typically based on observed traffic violations, driver behavior, or results from Standardized Field Sobriety Tests (SFSTs). Once probable cause is established, the suspect may be transported to a designated testing site for a breath test.
Certified Operators and Testing Sites
Breath tests must be conducted by certified breath testing instrument operators using approved testing equipment. District Commanders assign supervisors responsible for the care, maintenance, and security of these instruments. If the arresting officer is not certified, they must request a certified operator to perform the test. Many police departments require each district to maintain a testing site with a functioning breath-testing instrument.
Observation Period
Before administering a breath test, the subject must be observed for at least 20 minutes to ensure nothing is ingested orally that could affect the test results. This observation period is critical to maintaining the accuracy and reliability of the test.
Testing Protocols
Breath tests are performed using instruments that meet standards outlined in the Ohio Administrative Code and are equipped with safeguards, such as Radio Frequency Interference (RFI) detectors, to ensure accuracy. Police departments typically requires the operator to:
- Verify the proper functioning of the instrument
- Perform the test according to established protocols
- Log the test in the testing site logbook
If the RFI detector activates during the test, the process must restart. A second activation requires switching to an alternative testing site or method, such as urine or blood testing.
Handling Test Results
If a breath test is successfully completed:
- Results indicating a BAC of 0.08 or above are documented and used to charge the individual under relevant provisions of Ohio Revised Code Section 4511.19.
- If the BAC exceeds 0.17, additional charges under “high-tier” OVI statutes may apply, resulting in enhanced penalties.
The results are recorded on Form HEA2652 (State of Ohio Test Report), which is included in the OVI case jacket. Refusals or test failures are also documented in the logbook and associated forms.
Administrative License Suspension (ALS)
The ALS form (BMV-2255) is used to inform the individual of the consequences of refusing a breath test or providing a result above the legal limit. The form is read to the individual in the presence of a witness, and refusal to sign or comply results in an automatic license suspension.
Equipment Maintenance and Calibration
The Traffic Unit is responsible for ensuring the breath testing instrument is maintained, calibrated, and inspected according to state guidelines. Any malfunctioning equipment must be removed from service, documented, and reported to the Traffic Unit.
Documentation and Evidence Submission
All breath test results, along with supporting documentation, are compiled in the OVI case jacket (Form 496). This includes:
- The completed State of Ohio Test Report
- Copies of the ALS form
- The arrest report (Form 495)
- Any relevant evidence or witness statements
The testing site supervisor reviews and files all forms to ensure accuracy and compliance with procedural standards.
Frequently Asked Questions
- Can someone refuse to take a breath test in Ohio?
Yes, a person can refuse, but under ORC Section 4511.191, refusal leads to an immediate Administrative License Suspension (ALS) and can be used as evidence in court. - How long can a driver’s license be suspended for refusing a breath test?
The length depends on prior offenses: one year for a first refusal, escalating to five years for multiple refusals within ten years. - Are breath test results always accurate?
No, accuracy can be affected by factors such as improper calibration, medical conditions, or procedural errors. - What happens if a breath test is below the legal limit?
A BAC below 0.08% does not guarantee no charges. Officers may still charge someone under ORC Section 4511.19(A)(1)(a) if they believe the driver was impaired. - Can someone get an independent test?
Under ORC Section 4511.192, a person has the right to obtain their own chemical test at their expense after submitting to the officer’s test. - Can breath test evidence be thrown out?
Yes, if the test was improperly administered, the device was faulty, or the stop was unlawful, evidence may be suppressed. - How does a breath test refusal impact an OVI case?
Refusal often results in additional penalties, including an ALS and possible enhanced charges if prior refusals are on record. - Do first-time offenders face jail time?
Yes, first-time offenders typically face a minimum of three days in jail or a driver intervention program. Higher BAC levels can lead to mandatory jail time.
Additional Resources
- Ohio Revised Code Section 4511.191: Implied Consent – This source outlines Ohio’s implied consent law, which states that anyone driving in the state automatically agrees to chemical testing if arrested for OVI. It provides details on license suspensions for refusal or test failure, the legal process for contesting a suspension, and penalties based on prior convictions. The page also discusses specific rules for administering and documenting tests.
- Ohio Department of Health: Alcohol & Drug Testing Program – This source describes the Ohio Department of Health’s oversight of alcohol and drug testing programs. It details procedures for approving and certifying testing techniques and instruments used for OVI investigations. The page also explains the training requirements for operators and the retention policies for test records and specimens. Information about compliance and enforcement of testing standards is also available.
- Ohio Breath Instrument Data Center – This source provides a searchable database for information about breath test instruments used in Ohio. Users can find details about test results, records, and the maintenance of breath testing equipment. The page includes guidelines on how records are kept, the required retention period, and information about approved instruments under Ohio’s administrative code.
Hire an Attorney for OVI Breath Test Cases in Hamilton County, OH
If you or someone you know has been charged with refusing a breath test, you need to contact an experienced defense attorney immediately. The Wieczorek Law Firm, LLC represents clients in Southern Ohio, including the cities of Cincinnati, Columbus, Akron, Dayton, Toledo and South Point.
Contact Mark Wieczorek at (513) 317-5987 for a free initial consultation, or fill out our online contact form.