What Are Some Defenses To A DUI Charge? Part 2

 O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise. Currently, there are three approved breath-testing devices in Ohio, BAC Datamaster, the Intoxilyzer 5000, and the Intoxilyzer 8000.

 For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. The Ohio Administrative Code requires the police agency to maintain three years of records.

 A senior operator must perform the calibration of the device. In addition, the person suspected of driving under the influence must be observed for 20 minutes prior to taking the test.

This observation period is to make sure that there is not any “oral intake” by the suspect. Some very effective defenses related to the observation period may be present.

 Regarding the calibration of the machine, it must be performed no less frequently than once every seven days. If the state fails to demonstrate that the equipment was properly tested then there are clear grounds to have the test suppressed.

Another example of the calibration requirement relates to the ethyl alcohol solution used to verify the machine is within +/- .005.  

The solution used must not be older than three months from its first date of use and must be kept under refrigeration when not being used.  In the investigation of the client’s case, the attorney should ask for the batch and bottle certificate to verify compliance with the Administrative Code.

 Similar rules are set out in the Administrative Code for blood and urine testing. The attorneys at Suhre & Associates regularly request copies of all the pertinent calibration records and review them for compliance with the Administrative Code.

 Some Common Breath Test Defenses:

Insufficient or broken observation period – no continuous observation for entire 20 minutes before first breath sample.

During those 20 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.

If you need help with your DUI, Contact Suhre & Associates for your FREE Consultation using our 24 hour Emergency Number at 513 333 0014.  Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

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