Dayton Ohio DUI Breath Test

After the police arrest you for DUI, they will most likely take you back to the station and request that you submit to a chemical test by blood, breath, or urine. YOU cannot refuse to take one and agree to take another. The police have the authority to determine what test they want not you. They can also request more than one.

The most frequent test is with a breath sample. Police Departments like this test because it is a small machine that they can keep at the station, they can administer it themselves with the proper training and certification, and the results are ready right away.

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Your lawyer must be knowledgeable of the procedures used in giving the breath test as well as the requirements needed to properly maintain and calibrate the testing equipment. At Suhre & Associates, our lawyers know with the law and procedures used to check the accuracy of the breath test machine as well as the actions necessary for properly giving the test to a suspect.

We receive weekly updates regarding recent court decisions that affect Dayton DUI Defense. The Ohio Department of Health is charged by the Ohio Legislature for publishing the testing methods necessary for the admissibility of blood, breath, and urine tests at trial. These rules are published in the Ohio Administrative Code at OAC Chapter 3701-53.

Ohio Revised Code (O.R.C.) section 4511.19(D) sets out a 3-hour limitation on the collection of chemical test results by blood, breath, or urine. This 3-hour period starts at the time of the operation of the vehicle, not at the time of arrest. If the sample is not taken within the 3-hour period it may be inadmissible to support a prosecution under O.R.C. 4511.19(A)(1)(b)-(i).

An important part of our lawyer’s investigation will be discovering the time of operation (most commonly found on the ticket as time of the traffic stop) and comparing that to the time of the chemical test. This defense is especially important in a single car un-witnessed auto accident. It is also important in a multi-car crash because the prosecutor’s office will often forget to bring the witnesses to court to testify when the wreck happened.

O.R.C. 4511.19(D) also tells us that the breath test needs to be conducted on an “approved” breath-testing machine. Currently, there are three approved breath-testing machines in Ohio – the BAC Datamaster, the Intoxilyzer 5000, and the Intoxilyzer 8000. The 8000 is the latest machine in use.

For the breath test result to be admissible at a subsequent trial, the unit must have been properly maintained and calibrated. The O.A.C. requires the police department to keep three years of records.

A “senior operator” must check the calibration of the machine. Also, the person suspected of DUI/OVI must be observed for at least 20 minutes before taking the test. This observation time is to ensure the suspect does not put anything in his or her mouth. Some very effective defenses related to this observation time may be present.

The senior operator has to check the calibration of the machine at least once every seven days. If the state does not show that the equipment was properly checked then the test is subject to exclusion at the trial. Another example of the calibration check is that the ethyl alcohol solution used to verify the machine is within +/- .005 needs to be certified by the Ohio Dept. of Health.

The solution must not be older than 3 months from its initial date of use and must be kept under refrigeration when not in use or in transportation. We will investigate your case by asking for the batch and bottle certificate to check compliance with the Ohio Administrative Code.

The OAC also has similar requirements for blood and urine testing. The lawyers at Suhre & Associates always request a copy of all the relevant calibration records and evaluate them for compliance with the OAC.

Common Breath Test Defenses:

  • Incorrect observation period – no continuous observation for the entire twenty minutes before breath test.
  • You experience a burp, belch or have slight regurgitation of gas that is relatively quiet during the 20 minutes prior to the test.
  • Before the second test attempt after you are vomit or belch and are not allowed to rinse your mouth, or there is no additional twenty-minute observation time.
  • Your medical condition and health problems can make the breath test unreliable. They are:
    • 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).
  • Your general condition is not consistent with the test results.
  • The electric in the breath test room is defective – Radio Frequency Interference from a cell phone, officer’s radio, fax or other equipment with surge capabilities. This can influence the machine to give an artificially high reading. Other situations that can affect the test are smoking, shared power supply with heater or other machine – the breath test machine must be on a dedicated “clean” electrical circuit. Recent painting in the area can also cause an inaccurate test result.
  • You yourself can have been exposed to environmental conditions that effect the outcome of the test: exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative tendencies, causing chemical interference/false positive result.
  • Vehicle Air Bag defense – “the Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation and fluid build-up from caustic gas propellant can all chance the validity of the subject test result.
  • Videotape shows your mental condition and ability to drive, walk, talk, etc. are inconsistent with a high-test result, supporting the fact of your sobriety.
  • A high tier test from a urine screen can be attacked with the fact that you have not urinated for three to four hours or more – physiological impossibility.
  • Unanticipated alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).
  • Oral contaminants that containing alcohol (e.g. Breath Drops with SD alcohol).
  • Something in mouth, that can alter the test results (e.g. Skoal snuff – wintergreen, Altoids).
  • Police fail to tell you of your right to have a second independent test.
  • Police are not trained or marginally trained in accordance with the standards of the O.A.C.
  • Police fail to follow N.H.T.S.A. manual or training.
  • Neglect to properly calibrate or maintain the breath test machine.
  • Officer’s report supports sobriety, or lack of investigation of alternative causes.
  • Reverse extrapolation shows rising BAC indicating that BAC was under limit at time of operation.
  • Hot breath (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.
  • Precision of machine has margin of error (e.g., 0.081 reading – state acknowledges +/- 0.03% precision problem).
  • You can maintain constant pressure when you breathe in machine.
  • High protein diet followed by high amounts of carbohydrates triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).
  • Diabetic ketoacidosis (DKA) or 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 reads ALS warnings, but then goes too far by threatening dire consequences for which there is no factual basis or misreads the law regarding possible license suspension invalidating the knowing, voluntary, and intelligent nature of your test.
  • Prosecutor fails to show that results were obtained within the 3-hour time limit (three hours after driving).
  • You can prove sufficient alcohol was consumed during driving, after driving ended or before police arrived such that the results from the test are not representative of the amount of alcohol influencing you during operation of the vehicle.
  • Policeman that arrested you is injured, fired, indicted, retires, goes on military leave, or moves away.