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.”  Good DUI 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.

More soon.