O.A.C. 3701-53-02, Approved Evidential Breath Testing Instruments
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Ohio Administrative Code 3701-53-02(A) sets forth the approved instruments for evidential breath testing in Ohio. It states,
(A) The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person’s breath contains a concentration of alcohol prohibited or defined by sections 4511.19 and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath-alcohol concentration. The approved evidential breath testing instruments are:
- BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm;
- Intoxilyzer model 5000 series 66, 68 and 68 EN; and
- Intoxilyzer model 8000 (OH-5).
O.A.C. 3701-53-02(B) lists the approved testing instrument for violations of R.C. 1547.11, Ohio’s prohibition against boating while intoxicated. O.R.C. 1547.11(A)(1) to O.R.C. 1547.11(A)(6) prohibit a person from operating or being in physical control of a vessel underway or manipulating water skis, aquaplanes, or similar devices while under the influence of alcohol or drugs. Only the Intoxilyzer 8000 has been approved pursuant to this section. Section (B) states,
(B) The instruments listed in this paragraph are approved as additional evidential breath testing instruments for use in determining whether a person’s breath contains a concentration of alcohol prohibited or defined by section 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath alcohol concentration. The approved evidential breath testing instrument is:
- Intoxilyzer model 8000 (OH-2).
O.A.C. 3701-53-02(C) limits breath testing to deep lung or alveolar air samples. This section can be used by skilled attorneys to show that the sample given was not deep lung alveolar air, but was contaminated with residual mouth alcohol. Using this type of a defense will require an experienced attorney and a competent expert witness. Section (C) states,
(C) Breath samples of deep lung (alveolar) air shall be analyzed for purposes of determining whether a person has a prohibited breath alcohol concentration with instruments approved under paragraphs (A) and (B) of this rule.
O.A.C. 3701-53-02(D) and (E) incorporate the manufacturers’ recommendations on use of the breath testing machines and place the burden of adopting procedure on the Director of Health. These sections provide as follows,
(D) Breath samples using instruments listed under paragraphs (A)(1), (A)(2) and (B) of this rule shall be analyzed according to the operational checklist for the instrument being used and checklist forms recording the results of subject tests shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. The results shall be recorded on forms prescribed by the director of health. (E) Breath samples using the instrument listed under paragraph (A)(3) of this rule shall be analyzed according to the instrument display for the instrument being used. The results of subject tests shall be retained in a manner prescribed by the director of health and shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.
