When any person is stopped in Ohio on suspicion of operating vehicle under the influence of alcohol or drugs (OVI), they will inevitably be asked to submit to a chemical test, usually of their breath. Breath tests are commonly performed roadside with portable devices, but additional tests can also be performed on units at police stations.

Breathalyzer Test

The devices that breath tests are performed on are frequently called breathalyzers, and most people who submit to these tests and fail them assume they are automatically guilty of OVI. In truth, a failed breath test is rarely the end of the story, as there are a number of important requirements that will have to be satisfied in order for that sample to be valid.

Breathalyzer Test Defense Lawyers in Columbus, OH | Sabol | Mallory

Were you arrested for OVI in the greater Columbus area after failing a breathalyzer test. You should make seek the help of a skilled criminal defense attorney in reviewing whether your test was properly administered.

Sabol | Mallory knows which kinds of errors can make breath test results inadmissible in court and we can fight to try to get your criminal charges reduced or dismissed. Call (614) 300-5088 or contact us online to schedule a free consultation.  

Ohio Breathalyzer Test Laws

Ohio Revised Code § 3701-53-01 establishes that tests to determine the concentration of alcohol can be applied to blood, breath, urine, or other bodily substances, and the results must be expressed as equivalent to:

  • Grams by weight of alcohol per one hundred milliliters of whole blood, blood serum or plasma (grams percent by weight);

  • Grams by weight of alcohol per two hundred ten liters of deep lung breath;

  • Grams by weight of alcohol per one hundred milliliters of urine (grams percent by weight).

  • Nanograms by weight of a controlled substances or a metabolite or a controlled substance per milliliter of blood, urine, or other bodily substance.

Test results must be retained for at least three years. Under Ohio Revised Code § 3701-53-02,  the instruments approved as evidential breath testing instruments for use in determining whether a person's breath contains a concentration of alcohol prohibited by Ohio Revised Code § 4511.19 and/or Ohio Revised Code § 1547.11, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration (BAC), are:

  • BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm;

  • Intoxilyzer model 5000 series 66, 68 and 68 EN; and

  • Intoxilyzer model 8000 (OH-5).

Additional instruments are approved specifically for testing relating to violations of Ohio Revised Code § 1547.11, which relates to operation of water skis, aquaplanes, or similar devices under the influence of alcohol or drugs. Ohio Revised Code § 3701-53-04(A) states that a senior operator must perform an instrument check on approved evidential breath testing instruments once every seven days in accordance with the appropriate instrument checklist for the instrument being used, and the instrument check can be performed any time up to 192 hours after the last instrument check.

Ohio Revised Code § 3701-53-04(D) provides that an instrument check or certification must be made before a new evidential breath testing instrument is placed in service, placed into service following repairs, or used to test subjects. Under Ohio Revised Code § 3701-53-04(F), the analytical techniques or methods used in Administrative Code rule 3701-53-03 must be checked for proper calibration every testing day.

Common Breathalyzer Test Defenses

Many people who have taken and failed breath tests automatically assume they will be found guilty. While a positive test for a BAC that violates state law is not good, not all tests are entirely accurate.

Keep in mind many of the testing requirements listed above, as well as other requirements written in state law. Failure to follow any of these requirements may compromise the accuracy of samples and lead to numerous test results having to be thrown out.

Some of the most frequent reasons that breathalyzer test results are dismissed include, but are not limited to:

  • Failure to conduct uninterrupted observation period
  • Vomiting or belching during observation period
  • Medical conditions or health issues  
  • Behavior or actions noted in police report do not match test results or dashcam video.
  • Breathalyzer malfunction
  • Improper operation of breathalyzer
  • Test performed by unauthorized individual
  • Unintentional alcohol in mouth  
  • Officer failure to inform of right to second independent test
  • Failure to properly calibrate or maintain the breathalyzer
  • Rising BAC  

Your best bet after an OVI arrest in Ohio is to quickly have an experienced attorney review the arrest to see if your breath test was legally conducted.

Columbus, OH Breathalyzer Test Resources

Alcohol & Drug Testing Program | Ohio Department of Health — Visit this section of the Ohio Department of Health website to find more information about the Alcohol/Drug Testing Approval and Permit Program. The Alcohol and Drug Testing program provides oversight for OVI testing for law enforcement and laboratories by using approved methods approved by the Director of Health in Administrative Rules OAC 3701-53-01 through 10. View the list of complete functions of the program.

Ohio Revised Code § 4511.192 | Advice to OVI arrestee — View the full text that law enforcement officers are required to read to alleged offenders when arrested for OVI. The statement that the officer is required to read informs the alleged offender of the consequences of refusing to submit to a chemical test. It also specifies what the penalties will be for submitting to a test and are found to be at a prohibited level.

Examining the Breath Test Refusal Issue and its Relationship to Impaired Driving | National Highway Traffic Safety Administration (NHTSA) — View the full text of a 2008 NHTSA Report to Congress. The report shows breath test refusal rates by state for 2001 and 2005, with a 22 percent mean and 17 percent median in 2005 and a 25 percent mean and 18 percent median in 2001. NHTSA recommended that test refusal result in driver license suspension or revocation without provision for a restricted license except under the most extenuating circumstances.

Contact a Columbus Breathalyzer Test Defense Attorney Today

If you were arrested for OVI in Columbus or a surrounding community in Franklin County, contact Sabol | Mallory right away. Our firm helps people who have blown as well as those who have refused to provide samples.

We have undergone extensive training on field sobriety testing, drug analysis, and breath alcohol testing. Let us provide an honest and thorough evaluation of your case when you call (614) 300-5088 or contact us online to set up a free consultation.

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