Ohio DUI Law And The Portable Breath Test
In State v. Shuler , 168 Ohio App.3d 183, 2006-Ohio-4336, the Ohio Supreme Court took up the issue of whether a portable breath test device (hereinafter ‘PBT’) can be used as evidence in a drunk driving prosecution. The court found that,
PBT devices are not among those instruments listed in Ohio Adm.Code 3701-53-02 as approved evidential breath-testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they “may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all.” See State v. Zell (Iowa App. 1992), 491 N.W.2d 196, 197.
PBT devices are designed to measure the amount of certain chemicals in the subject’s breath. The chemicals measured are found in consumable alcohol, but are also present in industrial chemicals and certain nonintoxicating over-the-counter medications. They may also appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a driver’s clothes or hands may alter the result. Such factors can cause PBTs to register inaccurate readings, such as false positives. See Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for Lawyers, Jan. 28, 2005, www.duicentral.com/aba_journal/.
This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial. See Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (March 30, 1998), Van Wert App. No. 15-97-8, 1998 WL 142384.
You would assume given the strong language that the PBT is unreliable, you would think the court would not allow the device to be used to establish probable cause for an arrest. Not so. In the same case the Supreme Court reiterated the rule that the PBT can be used to determine probable cause to arrest a person for DUI.
In State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, ¶54, we recognized that we have previously allowed the results of a PBT as a valid factor upon which to base probable cause. We recently recognized our adherence to this practice in State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, at ¶23. Our openness to employing PBT results as a factor to be used in determining probable cause, however, has never extended into a practice of admitting PBT results as evidence at trial.
Is this position not amazingly inconsistent? If we change the PBT to another discounted scientific method like using a psychic, it proves the point. We can all agree that mediums and psychics are frauds that prey upon the vulnerability of their victims. Unfortunately, some law enforcement agencies have been duped (usually by desperate family members) into using psychics in unsolved murder cases. It is obvious that a psychic could not be used against a criminal defendant to establish guilt… that would be crazy. Is it not just as crazy to assume we should rely upon the psychic to establish probable cause for an arrest? Imagine staying in jail based awaiting trial based on the evidence given by an unreliable psychic. It is just as bad to be arrested and put in jail based on the evidence of a faulty, unreliable PBT device?
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights,Beavercreek, and throughout Ohio. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.