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What Are Ohio’s Laws About Breath Testing?

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If you have been pulled over for a suspected DUI or OVI, you may be subject to breath testing. Under Ohio law, breath testing must be administered within three hours of the alleged violation. The Ohio Department of Health regulates how and when all breathalyzer machines are inspected and calibrated. They also regulate the issuance of permits to breath test officers and record-keeping requirements.

Don’t hesitate to reach out if you have been breathalyzed and are being charged with a DUI. With legal representation, you may be able to defend yourself against breathalyzer results and reduce or even remove penalties against you. Call our firm today at 330-296-8000 for more information and to learn how we can help you.

What Are the Most Common Defense Strategies for Breathalyzer Results?

Although a breathalyzer test may seem like airtight evidence for a conviction, there are some defense strategies you and your legal team could pursue. Depending on the nature of your case and your charges, there are multiple ways you could defend against breathalyzer results.

Common defense strategies include:

Improper Stop by Police

To pull over or stop a vehicle, a police officer must have reasonable suspicion that criminal activity is taking place. If the officer cannot prove that there were specific reasons they pulled you over, it may be possible to remove the charges against you.

Medical Conditions

Medical conditions and neurological problems can cause symptoms that mimic the effects of being intoxicated or under the influence. For instance, a traumatic brain injury could cause slurred speech or blurry vision. Diabetes can cause ketosis, which presents as an alcohol smell on the breath. If you can prove your medical condition, you can use this as a defense strategy.

Improper Protocol During Field Sobriety Tests

Field sobriety tests (FSTs) are typically administered before breathalyzer tests. They often include the one-leg stand test, the walk and turn test, and horizontal gaze nystagmus. If the officer who pulled you over administered any of these tests incorrectly, you may be able to defend yourself against charges.

Failure to Provide Miranda Warning

A Miranda warning is when an officer advises you of your Miranda rights, or the right to remain silent and to an attorney. If an officer arrests you without giving you your Miranda rights, any information you provide the officer could be invalid during a trial. However, it’s important to note that an officer can ask questions before an arrest without advising you of your rights.

Violation of Evidence Procedure

Officers are required to follow strict procedures when collecting evidence at the scene of a potential DUI. Any evidence, like alcohol bottles from a vehicle, the results of a breathalyzer test, or other items, must be collected and stored correctly. This evidence may be inadmissible if the officer did not follow the procedure.

Mouth Alcohol Contamination

In a breath test, the breathalyzer detects the alveolar of the deep lungs to calculate blood alcohol content (BAC). However, there have been cases where the breathalyzer device picks up latent alcohol in the mouth rather than in the air from the lungs. This could be caused by belching, burping, or using cough syrup or mouthwash.


In many cases, the symptoms of fatigue mimic the symptoms of being intoxicated. Slurred speech, stumbling while walking, watery eyes, and bad driving can all be explained by extreme tiredness. If an officer mistakes fatigue symptoms with intoxication, your case may be invalid.

Error Rate

All testing equipment comes with an inherent error rate. In breathalyzers, the error rate is around +/- .02. If your BAC was right on the legal limit, it’s possible that the breathalyzer was incorrect or faulty. Proving equipment failure could get the charges against you dismissed.

How Can a Defense Lawyer Help Me?

Being arrested or charged with a DUI can be a stressful and scary experience. Fortunately, even if your BAC was recorded over the legal limit, you may still have options to defend yourself against the charges. Our team at Weisenburger Law Offices, LLC can review your case and create a legal defense strategy to remove or reduce the charges against you. For more information, call us today at 330-296-8000.

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