Dui Defenses And Defending The Breathtest In Ohio
Three hour limitation to collect the sample: 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).
Approved Testing Device Must Be Used: O.R.C. 4511.19(D) requires that the breath test be conducted on an approved breath-testing device. At present there are three approved breath-testing devices in Ohio. The BAC Datamaster, the Intoxilyzer 5000 and the Intoxilyzer 8000. There has been recent case law in Ohio, where judges are not permitting the admission of any samples when the Intoxilyzer 8000 is used because courts have found it to be unreliable.
Records for Three Years Were Not Maintained: For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. Under the Ohio Administrative Code the police agency possessing the machine is required to maintain the records for three years.
20 Minute Observation Period Did Not Apply. 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 merely by looking at the breath sample ticket. Although, an officer statement that he did observe is usually sufficient, hiring the right defense attorney to cross examine the officer to elicit facts which may demonstrate to the contrary is essential. Usually the breath test video is the most important part when defending on this basis. If your attorney prove during this time that the suspect either burped, belched, or had a slight regurgitation this will help the defense.
Was the Machine Calibrated in the last 7 days: The breath machine used must be calibrated 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.
Age of the Solution: The solution used to calibrate the machine 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 and elicit answers on cross examination that demonstrate the solution was not properly refrigerated.
Suspects Medical Condition Affected The Test: Certain medical conditions/health issues make the breath test inherently unreliable. They include:
Man v. Machine: Despite the breath test, your behavior does not match the test results.
Radio Frequency Interference: Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities. In sitautions like this, sometimes the Officer may forget to take the cell phone off the suspect which in turn will affect the reliability of the breath test. These situations may cause the machine to give artificially high reading.
Other Factors Which Can Affect The Results. Smoking near the machine, shared power supply with heater or other appliance – the machines must be on a dedicated “clean” electrical circuit. Recently painted walls or trim can also interfere with the test.
Call Rutan Law now for a free consultation and see which of the defense above may apply in your case. Call or text 614-307-4343.