Breath Test

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OVI Breath Tests in Cincinnati Ohio

If you submitted to a breath test, then the prosecutor will attempt to admit that breath test reading into evidence at your trial to prove that you are guilty of OVI under one of the “per se” versions of the offense. The attorneys at Joslyn Law Firm are experienced in fighting breath test OVI cases in Cincinnati and the surrounding areas of Hamilton County, Ohio.

The breath test result showing an breath alcohol concentration (BAC) over the legal limit can also be used for the Administrative License Suspension (ALS) that occurs shortly after your arrest.

Whether this is your first offense for drunk driving, or a second or subsequent offense, Call us for a free consultation to discuss your case.

Attorneys for OVI Breath Test Cases in Cincinnati, Ohio

Under Ohio law, it is illegal to operate a motor vehicle with a prohibited amount of alcohol in your breath. In Ohio, the legal limit is set at .08 and enhanced penalties apply to any reading over .17. The illegality of your alcohol concentration does not depend on whether the alcohol in your system is actually causing impairment of your normal faculties or ability to drive safely.

If you are actually impaired by the alcohol, then a separate offense of “operating a vehicle under the influence” can be charged. Even if you refused to take the breath test, you can still be charged with OVI under a theory that your faculties were impaired by the alcoholic beverages.

If the officer suspects that your breath alcohol concentration is over the legal limit, then the officer may request that you submit to a breath test. The Ohio Department of Health has approved three different machines for use in OVI cases in Ohio including:

  • the Intoxilyzer 8000;
  • the Intoxilyzer 5000; and
  • the BAC Datamaster.

Officers might also use an approved portable breath test machines that are handheld which is often called the PBT. However, it is important to realize that the PBT results are not admissible at trial. In some cases, the prosecutor will attempt to use the PBT results at a preliminary hearing to support the officer’s determinate that cause existed for the drunk driving investigation or arrest.

If the breath test result shows a .08 BAC or above, then the officer will charge you with the “per se” version of OVI. If the BAC result is at or above .17 then the officer will charge you with the “per se, high test” version of OVI. Different minimum mandatory penalties are associated with each version of “per se” OVI in Ohio.

How the Breath-Testing Machines Works in Ohio

Breath test machines in Ohio work by exposing your breath in the sample chamber to infrared light. The infrared light passes through the breath in the sample chamber to reach a sensor at the opposite end. Molecules of alcohol absorb at a known and predictable amount of infrared radiation. That amount of absorption can be measured and used to calculated an estimated alcohol concentration.

Ohio’s Statutes, Rules and Regulations for Breath Testing

Ohio has enacted a series of statutes, regulations and rules related to breath testing and its admissibility into evidence at trial. Under the statutory scheme, the breath test must be administered within three hours of the alleged violation. Under Ohio’s R.C. §4511.19(D)(1), “The Court may admit evidence of chemical tests taken within three hours of the alleged violation.”

Regulations enacted by the Department of Health concern the way the breath test machines are maintained, inspected, and calibrated. The regulations also apply to the issuance of permits to breath test operators and the record keeping requirements. In Ohio, unlike many other states, case law has traditionally tended to restrict general attacks on the reliability and validity of breath testing machines while allowing attacks on the accuracy of the individual breath test being admitted into evidence.

Recent challenges to the Intoxilyzer 8000 in Ohio have made it clear that the defense is permitted to challenge both the reliability of the breath testing instruments and the results returned in an individual case.

Ohio’s Alcohol/Drug Testing Approval and Permit Program

The rules for breath testing in an OVI case can be found in Ohio’s Alcohol/Drug Testing Approval and Permit Program. The program complies with Director of Health’s Administrative Rules OAC 3701-53-01 through 10. For the breath testing, the program performs the following functions:

  • approves evidential breath testing instruments;
  • oversees the certification of Simulator Solutions used in evidential breath testing;
  • promulgates basic requirements for the retention of records and specimens pursuant to breath for alcohol;
  • promulgates basic proficiency requirements pursuant to breath testing for alcohol;
  • promulgates basic requirements for personnel performing breath testing for alcohol;
  • approves techniques to determine the concentration of alcohol in breath;
  • devises protocols to insure the proper and consistent operation of evidential breath testing instruments;
  • issues permits for breath testing for alcohol; and
  • revokes permits from permit holders who fail to comply with OAC 3701-53-01 through 09.

Challenging the Accuracy of Breath Test Results in Cincinnati, Ohio

Ohio’s driving while intoxicated statute set out the legislature’s determination that a person cannot drive without posing a danger to himself and other. Under Ohio law, the defendant may still challenge the accuracy of his specific test results. The jury may consider those specific test results, and all other relevant evidence, in ascertaining whether the state has shown beyond a reasonable doubt that the defendant has violated the statute.” State v. Tanner, 15 Ohio St. 3d 1 (1984).

“A blood sample taken outside the time frame set out in R.C. §4511.19(D) is admissible to prove that a person is under the influence of alcohol as prescribed by R.C. §4511.19(A)(1)(a) in the prosecution for a violation of R.C. §2903.06, provided that the administrative requirements of R.C. §4511.19(D) are substantially complied with and expert testimony is offered.” State v. Hassler, 115 Ohio St. 3d 322 (2007).

Pursuant to R.C. §4511.19(D)(2), even if the test results are less than the per se levels, the results may be considered with other competent evidence in determining the guilt or innocence of the defendant.

In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Supreme Court of the United States addressed the issue of certificates of state laboratory analysts used to provide prima facie evidence of the substance’s composition, quality, and net weight. The court referenced Ohio’s notice and demand statute under R.C. §2925.51(C). R.C. §2925.51(C) has the same language as in R.C. §4511.19(E). Therefore, by implication, supporting the constitutionality of that statute as well.

Additional Resources

Breath Alcohol Testing Program in Ohio– Visit the website of the Ohio Department of Health to learn more about Ohio’s Alcohol/Drug Testing Approval and Permit Program in compliance with complies with Director of Health’s Administrative Rules OAC 3701-53-01 through 10. Additionally, the Alcohol/Drug Testing Approval and Permit Program routinely provides expert testimony and participates in education programs pursuant to alcohol and drug testing and regulation.

Ohio Department of Health
Alcohol & Drug Testing
8995 East Main Street, Building 22
Reynoldsburg, OH  43068
(614) 644-4609

Basic and Renewal Breath Testing Training Locations in Ohio – Visit the website for the Ohio Department of Health to find a list of renewal testing locations for basic testing. The site offers advice for planning to take a renewal examination at another agency’s testing site to confirm seating availability, and instrumentation (BAC DataMaster or Intoxilyzer 5000). Also find the training request form from the Alcohol Drug Testing program. Find information for basic and renewal breath testing training.

Ohio’s Breath Testing and Breathalyzer Rules – Visit Ohio’s Lawriter LLC website to find Ohio Revised Code and Administrative Code. Find Chapter 3701-53 Alcohol Testing rules on techniques or methods to determine alcohol concentration in the breath. Find 3701-53-02 on breath tests and approved evidential instruments in Ohio including the BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm, the Intoxilyzer model 5000 series 66, 68, and 68 EN; and the Intoxilyzer model 8000 (OH-5). Find the rules for senior breath test operators who must care for, maintain, perform instrument checks upon, and operate the breath testing instrument for which the permit is held.

Finding an Attorney for Breath Test OVI Cases in Cincinnati, Ohio

If you were arrested for driving under the influence of alcohol in Cincinnati, Ohio, or the surrounding areas in Hamilton County, then contact an experienced OVI defense attorney. We fight OVI cases involving a breath test on the BAC Datamaster and the Intoxilyzer 5000 or the Intoxilyzer 8000.

We are familiar with the techniques used by various law enforcement agencies throughout Hamilton County, Ohio, including the Hamilton County Sheriff’s Office, the Cincinnati Police Department, and the State of Ohio Highway Patrol. We are also experienced with the tactics used by the Hamilton County OVI Task Force, especially when it comes to local sobriety checkpoints and saturation patrols throughout the county.

Call us to find out more about how to challenge the breath test reading and move to exclude it from the trial. Call for a free consultation to discuss your case.

This article was last updated on Friday, November 13, 2015.

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