DUI Defenses

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:

  • gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest;
  • dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample);
  • or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).

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.

  • You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative tendencies, causing chemical interference/falsely elevated result.
  • Air bag defenses – “the Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation and fluid build-up from caustic gas propellant.
  • Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
  • Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).
  • Something in mouth, that contains interfering or contaminating substance (e.g. Skoal snuff – wintergreen, Altoids).
  • Officer fails to inform you of your right to have a second independent test.
  • Officer not trained or marginally trained in accordance with the standards of the Ohio Administrative Code.
  • Officer fails to follow manual or training protocol.
  • Failure to properly calibrate or maintain the machine.
  • Police report supports sobriety, or lack of investigation of alternative causes.
  • Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.
  • Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)
  • Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce. Show you have abnormally low blood/breath conversion ratio through testing and expert.
  • Inherent sampling variability or margin of error (e.g., 0.081 reading – state acknowledges +/- 0.03% precision problem).
  • You have blowing pattern irregularity.
  • You have blown to long.
  • You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).
  • You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.
  • Officer gives ALS warnings, but then goes too far by threatening dire consequences for which there is no factual basis or misstates consequences regarding possible license suspension.
  • Officer gets fired, indicted, retires, goes on military leave, or moves away.

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.

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