Breath Tests in Ohio for DUI/OVI – Portable Breath Test and Breathalyzer
There are two different types of breath tests in Ohio for DUI/OVI. First, there is the type that the officer will attempt to have you submit to on the side of the road to help determine if you are over the legal limit and whether or not to arrest you. This is known as a “Portable Breath Test” or “PBT.” You are not required under Ohio law to submit to this breath test and it is not recognized as a breath test device by the Ohio Department of Health. This test is only used by the police to assist in determining whether probable cause exists to place you under arrest. It is not admissible in court because of its unreliability and your refusal to submit to a PBT cannot be used against you in court. However, even though it is not admissible in court, you should never take this type of breath test.
If the results cannot be used in court and a refusal to submit to a portable breath test cannot be used against you, why wouldn’t you submit to it? Once the officer pulls you over for suspicion of DUI/OVI, asks you to exit the vehicle, and asks you to perform field sobriety tests, the officer has already made up their mind on arresting you. If you submit to the PBT and fail, the officer will arrest you. If you take the PBT and pass, the officer will believe the machine was malfunctioning or not working properly and will still arrest you. Thus, you have no incentive to submit to the portable breath test.
The second type of breath test is an evidential breath test. The Ohio Department of Health has approved three machines for evidential breath tests – the BAC Datamaster, Intoxilyzer 5000 and the Intoxilyzer 8000. You will not have a choice as to which machine will be used and the test must be administered within 3 hours from the time of the offense (i.e., when you were pulled over).
It is not a crime to refuse to submit to these breath tests. However, Ohio’s Implied Consent law mandates that all Ohio drivers must submit to this breath test. Refusal to take this breath test will result in an administrative license suspension. Refusal to submit will result in a 1 year driver’s license suspension. However, if you submit to the test, one of three negative things may occur: (1) You will be subject to an additional charge of DUI/OVI “per se,” which makes defending your case more difficult. (2) You may score in the “high tier” level, which will lead to a harsher sentence upon a guilty plea or conviction (i.e., it will double the jail time). (3) Your license will be suspended anyway upon conviction.
Should I Take the Breath Test?
This is typically the first question that clients ask when speaking with me about DUI/OVI in Columbus or Delaware, Ohio. If there is any possibility that you could test for any amount of alcohol, you would be advised to not take the breath test. If you blow over the limit, the prosecutor now has evidence that you were intoxicated and impaired. This evidence will be used against you in court during a DUI/OVI prosecution. If you blow under the legal limit, but still have some amount in your system, you will still be charged with DUI/OVI and this information will be used against you in court as evidence that you were impaired. Refusal provides the prosecution with limited evidence in court.
As mentioned above, there is an immediate administrative license suspension for refusing to submit to the breath test. While this will result in a 1 year license suspension, your attorney can file a motion for you to have limited driving privileges (i.e., to go to school, work , doctor’s appointments, etc.). Moreover, submitting to a breath test and giving evidence to the prosecution could lead to a DUI/OVI conviction, which will be permanently on your criminal record, and your license will be suspended for a minimum 6 months (or potentially years).
What If I Already Submitted to the Breath Test?
If you have already submitted to the breath test, there are ways to challenge the results in court. Your attorney can file a discovery demand and public records request with the prosecutor and the Ohio Department of Health. This will allow your attorney to determine if the arresting officer properly administered the breath test and whether the breath machine was calibrated and maintained in compliance with Ohio Department of Health regulations.
There are several things to consider when challenging whether the breath machine was maintained and calibrated properly. The results from these machines can be thrown off by even the smallest defect in their calibration or the solutions used to calibrate the machines. Radio frequencies, burps and even recent alcohol in your mouth from innocent sources, such as mouth wash, can lead to an inaccurate measurement.
Columbus and Delaware, Ohio DUI/OVI Defense Attorney
If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, call Johnson Legal, LLC at (614) 987-0192 and speak with attorney David Johnson. Attorney Johnson will discuss your case with you, investigate the prosecution’s evidence, and aggressively defend you and your right to drive.