Ohio DUI Law: State v. Shuler (Portable Breath Test Not Allowed)

Portable Breath Test Not Allowed

The Fourth District Court of Appeals slammed the use of portable breath tests as trial evidence in State v. Shuler, 168 Ohio App.3d 183, 2006-Ohio-4336.  The unique facts of this case were that the defendant was stopped on November 6, 2004 for making an erratic, improper turn.  He was “asked” to leave the vehicle for submission to field sobriety tests.  In addition, the officer administered a portable breath test to the defendant.  The PBT result was .078 (below the legal limit).  The defendant was arrested and taken to the station where the results of the BAC test were .126.

Shuler argued against admission of the portable breath test as evidence.  The trial court denied the PBT’s admission saying that the PBT devise and technology are not sufficiently reliable to be used as evidence.  This should be viewed as perverse since the very same technology is often used by the courts as a basis for probable cause.  See also, State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, 2002 WL 851765 and State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, 2005 WL 1594836. So, it is absolutely unreliable in producing results, but we will let officer’s arrest you based on this. This makes no sense.

The Court’s Reasoning

The court stated, “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. Portable breath test 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 also, 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.

The portable breath test may also produce a false result when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. In addition, gasoline containing ethyl alcohol on a drivers clothes or hands may alter the result.  Such factors can cause PBTs to register inaccurate readings such as false positives. See also,  Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for DUI 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 also,  Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (1998), Van Wert App. No. 15-97-8, 1998 WL 142384.

Wow, but they are still good for P.C.