In Ohio, it is incredibly difficult to challenge the reliability of a breath testing device because of a quirky law that is unique to our state. Fortunately, experienced DUI attorneys have made great headway in being able to reveal these machines for what they are: unreliable. Breath testing machines are great at measuring the amount of alcohol in a closed test tube; they are not nearly as good at measuring the same in our lungs.
There are several reasons for this. The first is that everyone’s body is different.
In recent testimony, Dr. Al Staubus a professor from the Ohio State University testified that some studies show that breath testing can vary up to 0.03. This means that if you are really at a 0.05 BAC (blood alcohol content), your test could print out at 0.08! In fact, our work has shown cases where the results are even more absurd.
Almost all client who call us either express despair over the fact that they took and failed a breath test or that they want to know what it will cost to beat a breath test. Both sets of clients understand how devastating a breath test can be to their case—and potentially their freedom. The first thing to understand is that in Ohio, there are two types of breath tests: one test is not admissible in your trial while the other may be.
The first type of breath test is typically a portable breath test (PBT). This device is about the size of a large smart phone and might look like one of those breath tests that a friend has shown up at a bar or party with. Ironically, these devices are just about as accurate as those—and, for those reasons, it is not admissible into evidence against you at trial. This does not mean you should subject yourself to the test, because they can in some cases use the test to arrest you and force you to submit to further testing.
The second type comes on one of three devices: one is called the BAC Datamaster, the other two are forms of a device called the Intoxilyzer. The Intoxilyzer 8000 is currently squarely in the center of a national fight over the accuracy of the machine. At least 11 courts in Ohio have ruled that the results from this machine are not admissible. There are significant reasons why this is. More importantly, the legislation behind the Intoxilyzer 8000 has opened up a huge loophole in fighting the BAC Datamaster, which is typically a more reliable machine.
Often, clients call asking if they made the right choices when they were approached, or stopped, by the police officers prior to their arrest. In an ideal situation, from the perspective of the attorney, the client would refuse to make any statement, refuse to take any field test, and then refuse the breath test. However, this does not always happen because the police officers leave out certain facts at the time you need to make choices. For instance, they say that if you refuse breath test, you will lose your license for a year. What the police do not say is that if you are convicted after a failed breath test, you could lose your license for up to three years!
So what happens if you take the breath test?
The first thing you need to know is that even if you take, and pass, the breath test, you are still getting charged with DUI from what you did on the field sobriety tests. Taking the breath test only provides you with an easier path to immediately getting your license back—or at least in 15 days versus 30 days on a first offense. Still, the one year that the police officers threaten for a refusal can be overcome. More importantly by refusing to take a breath test you deprive the police of evidence that they can use against you.
If you fail a breath test by testing over one of the two legal limits, you give the government evidence to convict you. This evidence seems pretty straightforward: the first legal limit is 0.08, the second is 0.17, and if your test is over it, you could be in serious danger of being convicted. What is worse is that the prosecutor no longer needs to prove that you were under the influence (i.e. drunk)—just that you were over a legal limit.
When arrested for a DUI, you are given a choice: take or refuse the breath test. Police are trained to use every possible means necessary to convince you to take it. They want you to test over as it makes their case better.
However, does this mean you should refuse? Can it can be used against you? The truth is that a refusal of a breath test can be used against you! However, from the purely logical standpoint, refusing is probably still the right decision.
Most people who failed a breath test find themselves charged with two DUIs. A charge for being impaired, often labeled as 4511.19(A)(1)(a), and a charge for being over the legal limit, or 4511.19(A)(1)(d) or (h). When an individual correctly decides to fight their DUI charges, the prosecutors almost immediately will drop the 4511.19(A)(1)(a) charge and go forward on the failed breath test. For the failed breath test, they only need to prove you were over the limit. For the first charge, they need to prove you were too drunk to drive. By refusing a test you risk higher penalties, but you deprive the government of valuable evidence against you.
Remember there is no legal requirement that you incriminate yourself if guilty—or even cooperate if innocent.
While a refusal can be used against you, the prosecutor has to actually prove you were intoxicated. This is measurably harder to do than prove that your blood alcohol level was over a certain number. Why? Well, everyone has a different way of exhibiting intoxication. Some people have a high level of tolerance that makes it harder to manifest actual impairment, other people have a very low tolerance.
When you refuse a breath test, the prosecutor is forced to rely upon other evidence that the general public does not find as reliable. An example would be the field sobriety tests, which are not reliable at all. Take, for instance, the National Highway Safety Transportation Administration, which is the group that has spent millions of dollars putting together and studying the field sobriety tests. In their 2007 publication on one of the three main standardized tests, they revealed that in some cases the officers conducted the tests were wrong an amazing 52% of the time. Most officers, most prosecutors, and most judges are not aware of this. This is why it is important to hire a DUI attorney to defend you from these charges that actually practices DUI defense.
If you refuse a breath test, the immediate impact is your license is administratively suspended by the police officer through the BMV for one year. You will not be able to obtain driving privileges for 30 days, unless you have an attorney who can help navigate you through what is known as an ALS appeal. On top of that, a refusal carries with it a minimum of 6 days in jail, the party plates, interlock device, and alcohol assessment. These penalties only come if you are convicted, which makes fighting your DUI even more important.
If you listen to the police, you will hear that refusing a DUI / OVI breath test is the worst possible thing that you can do when you are facing criminal charges. However, consider this: the breath test is typically the best piece of evidence that you are guilty and even if you pass the breath test, you are still getting charged.
If you have reached the point where police are demanding that you submit to a breath test, you have already been arrested. The police are simply searching for evidence that you are over one of the two legal limits. Some might ask why you would refuse a test if sober. To them we ask…why would you continue to cooperate with police officers who have already concluded that you are guilty and could care less about your sobriety?
As former prosecutors, we can tell you that most officers are horribly trained when it comes to DUI offenses. They believe they are well trained, but in fact the opposite is true. One of the areas where this gets exposed is when we are dealing with a refusal but the person is trying. Officers are trained to believe that if you are unable to produce a result on the breath testing device, you have to be playing games or screwing around.
Often, the complete opposite is true or, worse, the machine simply is not working. Sometimes, the police officer will see that the breath test reading is approaching 0.08, the first legal limit, but not going over. In these situations, the officer will also assume you are playing games. After all, they arrested you for being over the legal limit. So what do you do? You hire the most experienced OVI defense lawyers that you can afford.
We at Patituce & Associates can tell you that it amazes us how many people believe that just because they failed a breath test that there is absolutely no way they can win their case or do better than being forced to plea guilty to a DUI. A DUI carries with it mandatory minimum jail time even on a first offense so it is important that you aggressively fight your DUI charge, even if you failed a breath test. An experienced DUI defense attorney can be the difference between the breath results staying in, or being thrown out.
There is a lot that goes into a DUI case, beyond just a breath test.
A DUI conviction is a serious matter—even a first offense has mandatory jail time, and a mandatory license suspension of 6 months to 3 years. We know the police officer got you to take the breath test by telling that if you failed you would only lose your license for 90 days, but if you refused, you will lose it for a full year.
So what should you do? Should you hire a DUI defense attorney to defend you if you failed a breath test? Yes. Absolutely, you need to hire the most experienced DUI attorney you can. Call (440) 709-8088 now.