THE BREATH TEST: WHAT IS THE LAW?

When an individual is taken to the police station he or she will be asked to submit to a blood, breath or urine test. The suspect does not have the right to pick which test he or she will comply with. By far the most common method for testing is the breath test. Law enforcement prefer this test because it is convenient and immediate results are obtained. Competent trial counsel will be familiar with how the breath test is conducted by the officers in the jurisdiction and have a familiarity with the devise used to conduct the testing. The Department of Health is responsible for devising the testing method for the admissibility of blood breath and urine tests. These rules are found in the Ohio Administrative Code at OAC Chapter 3701-53. Experienced counsel will also be familiar with the rules as set forth in the OAC. For a great explanation of how the breathalyzer works, please check out this article by Craig C. Freudenrich, Ph.D.

O.R.C. 4511.19(D) sets out a two-hour limitation on the collection of your blood, breath or urine. This two-hour period begins at the time of the violation not at the time of arrest. If the test is not conducted within the two-hour period it is inadmissible to support a prosecution under O.R.C. 4511.19(A)(2)-(4). Your attorney should ask you at the initial interview when you were pulled over and compare this to the time of arrest noted by the officer in his/her report. O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise, by an operator qualified under the Ohio Administrative Code. Calibration of the devise can only be done by a senior operator. In addition, the person suspected of driving under the influence must be observed for twenty minutes prior to taking the test. This observation period is to make sure that there is not any "oral intake" by the suspect. An experienced attorney will know the rules of this observation period and will know how to ascertain if there was compliance by reviewing the discovery provided by the prosecution. Also, the attorney will know that the breath testing devise must be "subject to an instrument check" no less frequently than once every seven (7) days." If the state fails to demonstrate that the equipment was properly tested then it is appropriate for the test to be suppressed. The use of the alcohol-based solution used in the machine must not be older than three months from its first date of use and must be kept under refrigeration after its first use, when not being used. Similar rules are set out in the Administrative Code for blood and urine testing. Make sure to get an attorney who can discuss these rules with you.

There is no denial of a constitutional right where a person under arrest for driving while intoxicated is denied the right to consult with counsel prior to determining whether to take a chemical test, pursuant to R.C. 4511.191. However, a person under arrest for driving while intoxicated has a statutory right pursuant to R.C. 2935.14 and 2935.20 to communicate with an attorney, and, where an exercise of such right is requested, the police must forthwith permit the arrested person to use facilities to make such communication. A good-faith request of an arrested person to exercise his statutory right, pursuant to R.C. 2935.20, to call an attorney, before submitting to a chemical test required by R.C. 4511.191, does not constitute a refusal to take such test where the delay occasioned by the exercise of the statutory right will not unduly or unreasonably delay the administering of the test. Whether a request to consult an attorney is made in good faith and whether the exercise of the right will unreasonably delay administering a chemical test are factual issues to be determined from the facts and circumstances involved. Siegwald v. Curry (1974), 40 Ohio App.2d 313: 10th District Court of Appeals for Franklin County (taken from the syllabus)

Charles M. Rowland II maintains an after-hours number that you can contact if you find yourself involved in a DUI arrest situation. That number is (937) 776-2671.