Breathalyzer Tests in Cleveland

It is incredibly difficult to challenge the reliability of breathalyzer tests in Cleveland because of a law that is unique to Ohio. 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.

Dr. Al Staubus, a professor from Ohio State University, testified that some studies show that breathalyzer tests 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%! Our work has shown cases where the results are even more absurd.

If you are facing charges for refusing a breath test or if you failed a breathalyzer test, contact our team now at 440-471-7784 to speak with a Cleveland DUI defense lawyer.

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Are Breathalyzer Tests in Cleveland Accurate?

Almost all clients 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 breathalyzer test. Both sets of clients understand how devastating a DUI breath test can be to their case—and potentially their freedom.

The first thing to understand is there are two types of breathalyzer tests in Cleveland and the rest of Ohio. One test is not admissible in your trial while the other may be.

Portable Breath Testers

The first type of breath test is typically a portable breath test (PBT). This device is about the size of a large smartphone and might look like one of those breathalyzer 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.

BAC Datamaster & Intoxilyzer 8000

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 at 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.

8 Factors that Affect Your BAC

The following are the common factors that affect your BAC:


The less you weigh, the less water you have in your body to dilute the intoxicating effects of alcohol. That is why heavier individuals appear soberer than their lighter counterparts when they consume the same amount of alcohol.


Since men have more muscle and less body fat compared to women, the latter will have a higher BAC if they consume the same amount of alcohol. In addition, women have less dehydrogenase—an enzyme that breaks down alcohol in the stomach—compared to men, which results in a higher BAC compared to a man with the same weight.


The older you get, the more pronounced the intoxicating effects of alcohol will become.


Consuming alcohol on an empty stomach can lead to a higher BAC compared to another person who had eaten before drinking. Food slows down alcohol that is being absorbed in your bloodstream and remains in your stomach longer.

A man taking a DUI Breathalyzer test in Cleveland

How Quickly You Consume Alcohol

The faster you drink alcohol, the quicker your BAC will increase.

The Strength of Your Drink

The more alcohol a beverage contains, the more alcohol will enter your bloodstream and increase your BAC.


Cough medicines, antidepressants, and even aspirin can amplify the effects of alcohol on your body.

Stress and Fatigue

The effects of alcohol will become more pronounced whenever you are feeling tired or stressed out.

What Happens When You Take a Breath Test in Cleveland?

Often, clients call asking if they made the right choices when they were approached, or stopped, by the police officers before 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 police officers leave out certain facts at the time you need to make choices. For instance, they say that if you refuse the 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!

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 you with 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 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.

A driver refusing to take a DUI breath test when asked by police

What Happens if You Refuse a Breathalyzer in Ohio?

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 be used against you? The truth is that refusing a breathalyzer test can be used against you! However, from a purely logical standpoint, refusing is probably still the right decision.

Most people who failed breathalyzer tests in Cleveland 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.

Note: 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 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 finds less 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 field sobriety tests.

In their 2007 publication on one of the three main standardized tests, they revealed that in some cases the officers who conducted the tests were wrong an amazing 52% of the time. Most officers, prosecutors, and judges are not aware of this. This is why it is important to hire a DUI attorney to defend you from these charges.

Ohio Penalties for Refusing a DUI Breath Test

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, party plates, an interlock device, and an alcohol assessment. These penalties only come if you are convicted, which makes fighting your DUI even more important.

Benefits of Refusing a DUI Breath Test in Ohio

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?”

A lawyer in court challenging breathalyzer tests in Cleveland

Why Did the Cop Charge Me With a Refusal When I Was Trying to Blow?

As former prosecutors, we can tell you that most officers are 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.

Should I Hire a Cleveland DUI Attorney If I Failed a Breathalyzer Test?

We at Patituce & Associates, LLC can tell you that it amazes us how many people believe that just because they failed breathalyzer tests in Cleveland that there is absolutely no way they can win their case or do better than being forced to plead 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 criminal 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.

Before the results of the test are admissible in court, the prosecution is going to have to demonstrate several things.

  • Officers must show that they had a legitimate reason to pull you over.
  • The officer is going to have to show that he had a reasonable suspicion that you were driving while intoxicated to justify pulling you out of the car.
  • The officer must demonstrate they performed field sobriety tests correctly.
  • They must demonstrate they had probable cause to arrest you for DUI.
  • The officer and the prosecutor must show everything about the breath test was done properly. Any mistake can result in the breath test not being admissible.

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 you 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.

If you failed a breath test, get in contact with a defense attorney from our Cleveland law firm today! Call 440-471-7784 now.

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