Fighting a breath test in an OVI case can be one of the most challenging parts of the case itself. However, just because you test over the legal limit of .08 for alcohol does not mean that you have no defense. There are common challenges to chemical testing that our OVI attorney may be able to make in your case to get the breath test result suppressed so that it cannot be used against you.
Three Hour Time Limit
The Ohio Revised Code states that a court may admit evidence on the presence and concentration of alcohol, at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. What that means is that if the prosecution intends to use the breath test result against a person charged with OVI, the breath test must occur within three hours of the alleged operation of the vehicle. Our OVI attorney reviews all of the evidence in your case in great detail to ensure that the three-hour time limit was complied with.
Machine Calibration and Maintenance
The Ohio Administrative Code is where all of the rules for approved evidential breath testing instruments can be found. The Ohio Administrative Code requires that the machine be in proper working order and that the law enforcement agency that has the machine in its possession perform certain instrument checks, that the machine is calibrated, and that records are maintained for at least three years. Our firm makes sure to request the records for the breath test machines to ensure that these checks and certifications are actually happening. If not, we have a basis to challenge the admissibility of the breath test.
Residual Mouth Alcohol
With any technology, sometimes it works according to plan, and sometimes it does not. The more modern breath test machines have the ability to detect mouth alcohol that could inflate the breath test results. However, there are occasions in which it just does not work. If you are a person who suffers from acid reflux (GERD), uses mouthwash or breath sprays right before the test, or even uses an inhaler for asthma, you may have challenges that can affect your breath test result. Navigating these technical errors is especially critical when you consider the legal stakes. According to the National Conference of State Legislatures, a first and second drunk driving offense within 10 years are treated as first‑degree misdemeanors in Ohio. Because the penalties for these offenses are so severe, ensuring the accuracy of the testing equipment is a vital part of any defense. Hiring an OVI attorney who knows and understands the complexity of chemical testing as well as the legal challenges that can be made is crucial to ensure your rights are protected. Our attorneys know the law and the rules, and have actually argued them in courts throughout northeast Ohio. Even with a breath test over the legal limit, there are still ways to fight your case.
