Defending Cleveland Residents in DUI Breath Test Cases
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; but, they are not nearly as good at measuring the same in our lungs.
There are several reasons for this. First, everyone’s body is different. Dr. Al Staubus, a professor from 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%! Our work has shown cases where the results are even more absurd.
Are Breath Tests 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 breath test.
People who have been arrested for drunk driving understand how devastating a breath test can be to their case and potentially their freedom.
In Ohio, there are two types of breath tests – one is generally admitted into evidence, while the other is not.
Portable Breath Testers
The first type of breath test is a portable breath test (PBT). This device is about the size of a smartphone and might look similar to one that a friend has shown up with at a bar or party.
Portable breath testers are not accurate and therefore not admissible as evidence against you at trial. This does not mean you should refuse to take the test.
Law enforcement uses a PBT typically to show that there was probable cause to arrest you for operating a vehicle impaired (OVI). Depending on the test results, the police can use the readout to get you to submit to further testing.
BAC DataMaster & Intoxilyzer 8000
There are two other types of breath analyzers that law enforcement uses to test for drunk driving: BAC DataMaster and Intoxilyzer 8000.
There is much debate over the accuracy of the Inoxilyzer 8000. At least 11 courts in Ohio have ruled that the results from this machine are not admissible.
8 Factors that Affect Your BAC
The following are the common factors that affect your BAC:
- Weight – 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 more sober than their lighter counterparts when they consume the same amount of alcohol.
- Gender – Since men have more muscle and less body fat compared to women, the BAC in men will generally be lower than that of women when consuming 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.
- Age – The older you get, the more pronounced the intoxicating effects of alcohol will become.
- Food – Consuming alcohol on an empty stomach can lead to a higher BAC compared to another person who had eaten prior to drinking. Food slows down alcohol that is being absorbed in your bloodstream and remains in your stomach longer.
- 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.
- Medications – Cough medicines, anti-depressants, 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?
Clients often wonder if they made the right choices when they were approached or stopped by the police prior to being arrested for driving under the influence.
The police are not going to tell you that you can refuse to make any statement, refuse to take a field sobriety test, and refuse a portable breath test.
Obviously, the police are looking to make an arrest and they leave out certain facts. For instance, many officers will tell you that if you refuse a 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 that you could lose your license for up to three years.
What Happens if You Take the Breath Test?
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 threatened 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 the limit, 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.
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 are hoping you test over the limit because it makes their case easier to prove.
However, does this mean you should refuse? Can it be used against you? The truth is that a refusal of a breath test can be used against you! However, from a 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 decides to fight their DUI charges, the prosecutors will almost always drop the 4511.19(A)(1)(a) charge and move forward with the failed breath test results.
If the prosecution can, they will use your breathalyzer results to prove that you were driving while impaired. Proving that you were too drunk to drive is more difficult. 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 still 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? Everyone has a different way of exhibiting intoxication. Some people have a high level of tolerance that makes it harder to manifest actual impairment, while 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 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 that practice DUI defense.
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, yellow 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 the prosecutors have to prove 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 you are sober. To them, we ask…why would you continue to cooperate with police officers who have already concluded that you are guilty and couldn’t care less about your sobriety?
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 charge of refusing a breath test, but in actuality, the person was trying to take the test.
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 you are faking the test.
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 find.
Should I Hire a Cleveland DUI Attorney If I Failed a Breath Test?
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 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 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.
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 Cleveland breath test attorney from our team today! Call (440) 471-7784 now.