Akron DUI Breath Test

After a suspect has been arrested by the police for DUI, they will be transported to the police station and asked to submit to a blood, urine or breath test. In Ohio, the police decide which test will be administered; the suspect does not have a choice regarding which test be will given.

Of the three tests, the breath test is the most commonly used. Police normally choose to give the breath test to suspected DUI offenders because of its convenience, its ease to administer and the availability of the results.

The attorney you hire should be familiar with the testing procedures of the breath test as well as the procedures for the maintenance and calibration of the breathalyzer.

Our attorneys are not only well versed in the law and procedures used to calibrate and certified each testing apparatus, but also in the procedures that are used to administer the test to a defendant.

At Suhre & Associates, we are constantly updating our case law database as well as receiving weekly updates regarding any court decisions that could affect how we defend DUI cases. The Ohio Department of Health is in charge of establishing the testing procedure for the admissibility of the breath test. Please refer to Chapters 3701-53 in the Ohio Administrative Code for these rules.

Ohio Revised Code section 4511.19(D) covers the rule regarding the three-hour limitation on the collection of any samples of the suspect’s breath, blood or urine. The three-hour time period begins at the time of the DUI violation, not when you are arrested. Any test results not taken within that three-hour period may not be admissible in a DUI prosecution against you.

As your attorney, we will determine when the alleged DUI violation occurred (normally determined by the initial stop) and when the breath test was administered. These times are especially important when dealing with a single car accident where no one was present to witness the actual accident.

These times may also be important in a multiple car accident if the prosecution fails to subpoena particular witnesses that could testify as to when the accident occurred.

Ohio Revised Code section 4511.19(D) also states that every breath test must be performed on a state-approved breath-testing device. The three devices currently used in Ohio are the BAC Datamaster and the Intoxilyzer 5000 & 8000.

In order for any breathalyzer result to be admissible against a suspect in a court of law, the device must be shown to have been properly calibrated and have the required certification. According to the Ohio Administrative Code, each police station is required to maintain records going back at least three years.

Only a certified senior operator is allowed to perform any calibration on a breathalyzer. Prior to administering a breath test, the police are required to observe the suspect for 20 minutes in order to make sure that there is no “oral intake” that would disrupt the breath results. The 20 minute observation period lends itself to several effective defenses that can be used to suppress an incriminating test result.

Each machine must be calibrated no less than once every seven days. Failure to show that the machine was properly tested could result in having those results suppressed. The device must also be calibrated using an ethyl alcohol solution to verify that the machine is correct within =/- .005.

The alcohol solution used in the calibration may not be more than three months old from the time it was first used and must be kept properly refrigerated while it is stored between use. Your attorney should always request the batch number of the solution along with its certificate to make sure that it is in compliance with the Ohio Administrative Code.

Out attorneys regularly request copies of relevant calibration results in order to determine if they are, in fact, compliant with the Code.

Breath Test Defenses

Here’s a breakdown of some of the DUI Defense strategies we’ve used in past.

  • The twenty minute observation period must be continuous and unbroken before the first test is given.
  • Burping, belching or slight regurgitation during the twenty minute observation may distort the results, making them unreliable.
  • Vomiting during the twenty minute observation period without rinsing your mouth.
  • Breath tests may be unreliable due to certain medical conditions, including:
    1. Hiatal hernia, gastric reflux or intestinal problems, such as gastro esophageal reflux disease, irritated bowel syndrome, barrett’s esophagus or acid reflux, that have been previously diagnosed.
    2. Dental conditions, such as gum disease, pockets around roots, gingivitis, dentures, or dental work which may trap alcohol and cause a contamination of the breath test.
    3. Breathing problems such as bronchitis, asthma, emphysema or chronic obstructive pulmonary disease.
  • Test results which do not match your actions or behavior.
  • Problem with the room where the test occurs – call phone interference, station or officer’s radio, copier or other machinery which contains surge capabilities. Any of these could lead to artificially high test results.
  • Other problems such as smoking near the breathalyzer, sharing a power outlet with a heater or other appliance or even a freshly painted wall may affect the results of a breathalyzer test.
  • Recent exposure to environmentally volatile fumes such as gasoline, paint, dry cleaning fluids or lacquer, which possess cumulative tendencies, may cause distorted test results.
  • Air bag defenses such as the “Tyndall Effect”, diffusion of light, bloody lips or mouth, lung and breathing problems and build-up of fluids due to caustic gas propellant.
  • Your behavior viewed on videotape does not correspond with an alleged high test result.
  • Ingesting unintentional alcohol such as cough syrup, lip balm or toothache medication.
  • Any other substance in your mouth which might contain alcohol such as certain breath mints or snuff.
  • Failure of the arresting officer to inform you of your right to request an independent breath test.
  • The officer administering the breath test not having proper certification according to the Ohio Administrative Code.
  • Officer failing to follow proper procedures and protocol.
  • A police report that supports your contention of sobriety or an absence of any investigation into other potential causes.
  • An increasing blood alcohol level suggesting a lower alcohol level while driving.
  • Increased breath temperature due to fever, sauna, detention in hot places such as in the back of an un-air conditioned police cruiser, dancing, menstrual cycle, etc.
  • Expert testimony showing you have an abnormally low blood/breath conversion ratio.
  • State recognized margin of error or sampling variability regarding test results.
  • A high protein diet where carbohydrates are recently introduce will cause an auto-generated production of alcohol when ketones are converted into isopropyl alcohol.
  • Diabetes, hypoglycemia or any other condition whereby consumption of alcohol results in high acetone levels being converted into isopropyl alcohol.
  • A situation where an officer informs the suspect of ALS consequences and then threatens extreme consequences where no extreme consequences exist.
  • Proof of consumption of enough alcohol after driving or prior the police arriving on the scene.
  • Unavailability of the arresting officer due to being fired, retired or simply moves away.