BREATH TEST

DUI Breath Test

Before discussing whether or not to take a breath test, let’s first discuss the different types of breath tests. The first type is called a Portable Breath Test and the second type of breath test is commonly referred as Evidential Breath Testing Machines.

A Portable Breath Test (PBT) is often referred as a roadside breath test. You are not required by law to take this test, and it is not a recognized breath testing device by the Ohio Department of Health. Because of its unreliability, it is not admissible in evidence in a trial to prove that you are over the limit. The only reason why a police officer may try to get you to take this test is to help him to determine if you are over the limit and whether to arrest you or not. This test is only used by the police officer to determine probable cause to arrest. You should NEVER take this type of test.

Evidential Breath Testing Machine Must be approved by the Ohio Department of Health.  The Ohio Department of Health has approved:

• The BAC DataMaster machine
• The Intoxilyzer 5000 machine (various models),
• The Intoxilyzer 8000.

Remember, you do not have a choice which machine to use or whether to take one or many tests (including blood and urine). The police officer can request that you take blood, breath, or urine test of his choice. You also have the right to have your own independent test taken. The evidential breath tests given by the police officer must be taken within 3 hours of the offense (time you were pulled over).  But, the Ohio BMV 2255 Form (ALS Form), Must be read to you within 2 hours of your arrest.

Prior to taking a chemical test the arresting police officer will inform you that if you take a chemical test and fail you are facing a 90 day Administrative License Suspension. And if you refuse to submit to a chemical test, you will be placed under a 1 year Administrative License Suspension. After hearing this, most people get scared and submit to the test for fear of a 1 year Administrative License Suspension. But before taking a chemical test, let’s breakdown what failing a breath test entails.

If you take a chemical test (breath , urine, or blood) and fail it, here are some damaging things that will result:

• The police officer will charge you with an additional per se charge of driving with prohibited amount of alcohol and/or drug in your system. This generally makes your case more difficult to defend.
• You could have a high tier alcohol or drug level and subject yourself to a tougher sentence (i.e. double the jail time).
• You just created evidence that you drank alcohol or consumed drugs.

In short, you created more hurdles to overcome in your case that just costs you more money. The 90 day license suspension vs. the 1 year refusal license suspension typically scares people into submitting to a chemical test. Bottom line, you will lose your license anyways. First, you will lose your license for a short period of time under the Administrative License Suspension. Then you will lose your license for a longer period of time under a DUI/OVI conviction. The majority of the time, it is better to immediately contact an attorney prior to submitting to any chemical test.

And WE STRESS that you IMMEDIATELY CONTACT an ATTORNEY prior to submitting to any chemical test because it may be a crime to refuse a chemical test (Breath, Blood, or Urine), under Ohio Revised Code 4511.19 (A)(2).  If you have a prior DUI/OVI, or OVUAC (underage DUI) conviction within 20 years, it is a CRIMINAL OFFENSE to refuse to submit to a chemical test, when you are validly under arrest for DUI/OVI. The penalties for refusing a chemical test in those circumstances are double the mandatory minimum for the OVI itself. 

Obviously, if you have had nothing or very little to drink, taking the test could help your defense. At least it would prove the lack of sufficient alcohol for them to make the per se level of a DUI/OVI case. However, it will not usually keep you from being charged with a DUI/OVI under the impaired section R.C. 4511.19 (A)(1)(a). Remember, even if you are under the legal limit, the officer has already decided that you were impaired and placed you under arrest for DUI/OVI. So it is very unlikely that the police officer will un-arrest someone that he has taken to the police station for a DUI/OVI offense after they tested under the limit.

As you can tell, deciding whether to take or not to take a chemical test (breath, blood, urine) is fact sensitive based on your unique circumstances. So prior to submitting to any chemical test, contact an attorney that understands and practices DUI/OVI law.

But if you have taken the breath, blood, or urine test, there are still significant defenses to this charge; and the test result does not mean you are guilty of the offense.

DO NOT LET A DUI/OVI CONVICTION RUIN YOUR LIFE!

Do not take on these serious charges alone. Holzfaster, Cecil, McKnight & Mues will assess all the evidence that will be used against you (i.e. Breath Tests, Field Sobriety Tests, Officer Observations, etc.), spot the weakness of the police officer’s and prosecutor’s case, formulate defenses in your favor, utilize the weakness in the prosecutor’s case and your defenses to negotiate a favorable outcome, and work to Minimize The Negative Consequences.

DUI DEFENSE

• DUI/OVI Detection
• Breath Tests
• The Court Process
• DUI/OVI Consequences

CRIMINAL DEFENSE

• Criminal Charges
• Traffic Offenses​
• Domestic Violence
• Theft
• Drug Crimes
• Alcohol Offenses
• Expungements

TRAFFIC DEFENSE

• Traffic Offenses
• CDL Violations
• Speeding
• Driving Under Suspension
• Hit and Run/Leaving the Scene of an Accident
• Reckless Driving
• Fleeing and Eluding
• Vehicular Assault

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