Ohio Breath Test: Implied Consent, Refusal, and Defenses

A chemical test that follows the roadside tests in our field sobriety guide.

After an OVI arrest in Ohio, an officer will usually ask you to take a chemical test of your breath. Ohio’s implied consent law is behind that request, refusing the test carries consequences, and the result, if you take it, is not the last word: a breath test can be challenged. Below is how breath testing works in Ohio, what happens if you refuse, and how these results are attacked. Call (937) 318-1384 for a free consultation.

Read about oral fluid sample tests.

Implied Consent and the Breath Test

Ohio’s implied consent law requires drivers to submit to chemical testing after a lawful OVI arrest. That testing can be of breath, blood, or urine, and breath is the most common. When you were arrested, the officer should have advised you of the consequences of taking or refusing the test. A test is imposed only after a lawful arrest, and the officer is required to follow specific procedures.

What Happens If You Refuse a Breath Test?

Refusing a chemical test can result in administrative and criminal consequences under Ohio law, including enhanced penalties in certain cases, but a refusal itself is not a separate OVI offense. A refusal generally triggers an Administrative License Suspension, and refusals are treated differently from test failures. Repeated refusals can result in substantially longer ALS suspension periods, and Ohio law treats certain refusal scenarios, particularly after a prior OVI, as the equivalent of a high-tier offense for penalty purposes. Because the decision whether to submit to testing carries significant and fact-specific legal consequences, it is a decision worth understanding before you are ever in that situation.

Learn about immediate suspension.

The Breath-Testing Machines Used in Ohio

Ohio currently uses two evidential breath-testing instruments: the Datamaster and the Intoxilyzer. Charles Rowland has completed training courses on both. Understanding how these machines operate, how they are maintained, and how results are generated is essential in evaluating breath-test evidence in an Ohio OVI case. An OVI defense attorney who is certified on the breath-testing machines used in a jurisdiction is in a far better position to understand how a machine could malfunction or give a falsely high reading.

How a Breath Test Can Be Challenged

A breath-test result is evidence, and like any evidence it must be lawfully obtained and scientifically reliable. When reviewing a breath test, some of the questions we ask in a motion to suppress include: Did the police officer and the police department follow the proper regulations for conducting a breath test? Was the test justified by the facts obtained by the officer? Was the breath-testing machine in proper working order? Is the test, as administered, reliable? Did the police department properly maintain the documents required to demonstrate that the test was properly administered?

The State of Ohio must provide discovery in your case, and that discovery includes the documents related to the breath test and the alcohol and drug test records governed by the Ohio Administrative Code. An experienced OVI attorney will notice when something is amiss or when a required record has not been provided. Those records, the calibration and maintenance of the instrument, and the officer’s compliance with the required procedures are often where a breath-test case is won or lost.

Why Charlie’s Breath-Test Training Matters

Defending an OVI case in Ohio requires more than familiarity with the statute. It requires an understanding of how impairment is investigated, how chemical testing works, and how Ohio courts evaluate that evidence. Charles M. Rowland II focuses his practice 100% on OVI defense and approaches these cases with both legal and scientific rigor. He has studied the science of evidential alcohol testing, including the physiological principles behind breath alcohol analysis and the assumptions built into Ohio’s testing framework. In 2007 he became the first private attorney in Ohio certified on the Intoxilyzer 8000, he is certified on the BAC DataMaster, and he has been qualified by the United States government as an expert witness on evidential breath testing, testifying in DUI court-martial proceedings.

Why Trust Charles M. Rowland II

Charles M. Rowland II has established himself as a top OVI attorney in Ohio and the Dayton area and beyond. He lives by the motto, “Work hard, play by the rules, and never quit!” Preparation, dedication and perseverance are his touchstones. He will vigorously fight for you and will genuinely care about the outcome of your case. He wants the most favorable outcome including acquittals, dismissed charges, or advantageous reduced charges.

He has been recognized by his clients and his peers as a top OVI attorney. He has been a “Super Lawyer” since 2013, a Fellow to the Ohio State Bar Foundation, the Nations Top 1%, the National Trial Lawyers Top 100 for Criminal Defense, a Dayton Bar Association Foundation Fellow, and has appeared in Time and Car & Driver Magazine for OVI defense. He was the first attorney in the United States to earn a certificate in Forensic Sobriety Assessment. He is a lecturer on OVI defense to police agencies, attorneys, judges, and students, and he taught OVI trial practice at the Greene County Peace Officer Training Academy for over fifteen years.

Charlie is a member of the Dayton Bar Association, the Dayton Bar Foundation (2022 Foundation Fellow), the Greene County Bar Association (past President), the Clark County Bar Association, the Ohio State Bar Association, the Ohio State Bar Foundation (2005 Foundation Fellow), the American Bar Association, and the American Bar Foundation.

Frequently Asked Questions about Ohio Breath Test

Free Consultation

If you took or refused a breath test after an OVI arrest in the Dayton area, call Charles M. Rowland II at (937) 318-1384 for a free consultation.