Breath Test

After a police officer arrests a suspect for DUI, they will most likely transport them back to the police station and ask them to submit to a blood, breath or urine test. In Ohio, a suspect cannot choose which test to submit to, the police have the choice. The most common testing method is the breath test. Law enforcement prefers this test because it is convenient, the simplest to administer, and the results are available immediately.

Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect. We regularly update our case law database and receive weekly updates regarding recent court decisions that affect DUI defense. The Ohio Department of Health is responsible for devising the testing method for the admissibility of blood, breath, and urine tests. These rules are found in the Ohio Administrative Code at OAC Chapter 3701-53.

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).

An important part of the attorney’s investigation will be determining the time of the alleged violation (most commonly determined by the time of the traffic stop) and comparing that to the time of the breath test. This defense becomes especially important in single car auto accidents where neither the police nor any witnesses saw the accident occur. It is also relevant in a multiple car auto accident because the prosecutors often fail to subpoena the necessary witnesses to prove when the accident occurred.

O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise. Currently, there are two approved breath-testing devices in Ohio – the BAC Datamaster and the Intoxilyzer 5000. The Ohio Department of Health is investigating the use of the Intoxilyzer 8000, but it has not been approved for use as of yet.

For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. The Ohio Administrative Code requires the police agency to maintain three years of records.

A senior operator must perform the calibration of the device. In addition, 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.

Regarding the calibration of the machine, it must be performed 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. The solution used 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. Similar rules are set out in the Administrative Code for blood and urine testing. The attorneys at Suhre & Associates regularly request copies of all the pertinent calibration records and review them for compliance with the Administrative Code.

Some Common Breath Test Defenses:

Insufficient or broken observation period – no continuous observation for entire 20 minutes before first breath sample.
During those 20 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.
Vomiting, belching within 20 minutes of test – no rinsing of mouth, or inadequate waiting period before retest.
Certain medical conditions/health issues make the breath test inherently unreliable. They include:
1. 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;
2. dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample);
3. or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).
Your behavior or actions do not match test results.
The breath test room or circuitry has a problem - Radio Frequency Interference from a cell phone, officer's radio, copy machine or other equipment with surge capabilities. These situations may cause the machine to give artificially high reading. Other conditions that can affect the result are 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.
Video tape refutes the high reading, supports sobriety.
High test result from a urine screen, yet you never urinate for three to four hours or more - physiological impossibility.
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 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.
State fails to prove that results were obtained within the three hour statutorily imposed time (three hours after driving ended).
You can prove sufficient alcohol was consumed during driving, after driving ended or before police arrived.
Officer gets fired, indicted, retires, goes on military leave, or moves away.