Dayton DUI Law Firm Helps with Breath Test Laws

Learn How Our Dayton Law Firm Can Challenge Ohio DUI Laws for Your DUI Case

The Breath Test

Challenging the Breath Test (Part I)

Ohio classifies DUI in two ways.  The first offense 4511.19(A)(1)(a) is the old fashion notion that you are "under the influence" of alcohol or drugs.  This definition is subject to expansion by the prosecution and is scrupulously narrowed by the defense.  Other portions of the statute deal with "per se" violations, known as breath test cases (blowing over the limit).  These two types of cases are very different and will be analyzed differently by competent DUI counsel. 
Ohio has judicially recognized rules and procedures to ensure the accuracy and reliability of the breath testing program.  These rules and procedures can be found in the Ohio Administrative Code.  Other "rules" that affect a breath test can come from departmental testing regulations, training procedures and operator's manuals.  Accordingly, an officer or department that ignores, skips or otherwise violates these administrative rules calls into question the accuracy and reliability of test results. 
Most jurisdictions will allow a test in unless the alleged deviations from the rules raise substantial and legitimate questions about the breath test that prejudices the defendant.  This is commonly referred to as the "substantial compliance test."  A good Dayton DUI law firm counsel can effectively use these deficiencies to create reasonable doubt as to the test.  The weight given to the test is determined not by the court but by the jury.  God bless that wonderful check on judicial power.

Challenging the Breath Test (Part II)

Undetected, raw, unabsorbed alcohol in the mouth may falsely elevate the results of a breath test. This residual mouth alcohol (RMA) can come from items ingested just prior to the test, from regurgitated (burped) air from the stomach, or from gastroesophogeal reflux.  Ohio testing protocol attempts to guard against this testing flaw by requiring officers to observe the defendant for twenty minutes prior to the test.  They look for burping, vomiting or any ingestion of items into the mouth.  Lazy observation by the police officer can result in a contamination of the test.

The BAC DataMaster, Ohio's most common breath testing instrument, further guards against this type of problem with "slope detectors" wich look at the air coming into the machine.  If the air is too heavily laden with alcohol it changes the shape of the curve and should result in the machine kicking out an "INVALID SAMPLE" reading.  This reading requires the officer to start the observation period over again.  Good DUI attorneys from a Dayton DUI law firm know the science behind the "slope detector" and its operation and can effectively explain this to a jury.  Charles M. Rowland II is a certified operator of the BAC DataMaster.

Challenging the Breath Test (Part III)

I once attended a seminar where an attorney argued that there were many things which "mirrored" ethyl alcohol, thereby interfering with the ability of the breath testing machine to distinguish between "real" alcohol (ethyl) and "false" alcohol (acetone). The interfering substance, acetone, is a natrually occuring by-product of the human body and is common in diabetics, dieters and persons coming into contact with household paints.  What's more there was some pretty solid science presented to support this argument. WOW!

Well, after studying the BAC DataMaster I am sorry to say that this method is very limited as a defense.  First, while acetone is plentiful, it's property as an inteferant is blunted by a machine using two infrared "filters."  The infra-red beam is shot through a breath sample.  The existence of acetone or alcohol creates a diminishment in the energy which is read by a solenoid and changed into volts.  The change in volts is then converted via the machines software into the BAC reading.

Alcohol has an IR signature, i.e. wavelengths in which the energy is absorbed.  Acetone, as an inteferant is present at only one of these wavelengths.  The machines use two of these wavelengths and compare the results.  Thus is acetone is present the machine will note the difference and is supposed to reflect that fact. 

For the limited number of defendants for whom this argument will work, it is a powerful defense.  For the majority however, it is an easily refutable and dangerous gambit.  The client would be better served by a frontal attack on the machine. Attorney Charles M. Rowland, from an experienced Dayton DUI law firm is a certified operator of the BAC DataMaster and earned his certificate by attending 24 hours of training at National Patent Systems, Mansfield, Ohio.

Challenging the Breath Test (Part IV)

External alcohol or other substances such as solvents, cleaning fluids, police car exhaust fumes, or other agents may interfere with the test results.  There are thousands of sources of alcohol that may potentially contaminate the air in the room.  Modern machines try to eliminate this defense by testing the room air in what is referred to as the "ambient air" or "air-blank" tests.  The machine must read a 0.000 to show that the air is clean prior to the test and that the sample chamber is purged of alcohol vapors. If the amount of ambient alcohol exceeds a "significantly detectable level" on the BAC DataMaster it will produce a "Blank Error" status message. Usually this is done by comparing the current blank test with the last blank test and measuring any difference.  According to the manufacturer of the BAC DataMaster, "[t]he blank test should be able to return within .003 of the last blank reading." Did your officer apply lotion and/or alcohol based hand sanitizer prior to the test?  Did the cleaning lady at the police station clean with an alcohol based cleaner?  This may be a basis for suppression. As a knowledgeable and ethical Dayton DUI law firm, we can challenge these issues for a DUI charge on your behalf.