Nearly one million Americans are arrested for impaired driving every year. And when many of those individuals are told they failed a breath test, they often feel as though there is no hope other than to plead guilty to an OVI/DUI.
However, a recent New York Times article highlighted the fact many of these breath test machines-or “breathalyzers” as many people call them-are unreliable. In fact, an investigation revealed the number of breathalyzers that produce inaccurate results is both, enormous and frightening.
In the last year alone, judges in Massachusetts and New Jersey have thrown out more than 30,000 breath test results due to unreliability issues stemming from improper maintenance often from human error and government oversight. The New York Times also found in many cases, the machines were improperly calibrated, yielding results that were at times 40% too high.
These breathalyzers have become a significant issue throughout American police departments. In some states, judges have gone public in expressing their concern over the unreliability of these machines such that some prosecutors have abandoned their use.
A 1984 Ohio Supreme Court decision in State v. Vega held an individual charged with OVI cannot present expert testimony to attack the general scientific reliability of breathalyzers calibrated and established in accordance with methods approved by the director of the Ohio Department of Health. Thus, for the longest time, defendants in Ohio were not able to effectively attack the reliability of these machines. In 2014, however, the Ohio Supreme Court in State v. Illg modified the strict Vega rule in favor of the accused. The Illg decision held an accused may challenge the accuracy, competence, admissibility, relevance, authenticity, or credibility of specific test results or whether the specific machine used to test the accused operated properly at the time of the test. This applies to all breathalyzers approved by the director of the Ohio Department of Health.
It is clear there has been and continues to be a significant reliability issue with breathalyzers throughout the nation. So why do so many people submit to these breath tests?
First, often times they believe they are helping themselves get out of a bad situation with the police. For instance, they may believe by submitting to a breath test, they are complying, and therefore, their compliance may cause the officer to issue them a warning or otherwise let them go without consequence. Second, many people feel as though they are not impaired and by submitting to a breath test, they have more to gain than to lose.
Perhaps most importantly, however, individuals submit to these breath tests because they are told if they do not, there will be consequences that are worse than submitting to and failing a test. In Ohio, for instance, before a police officer offers an arrested individual a breath test, the officer will inform the person if he or she refuses, there will be a one year driver’s license suspension called an administrative license suspension (“ALS”) imposed immediately upon a refusal. By submitting to the test, on the other hand, the officer will inform the person the consequences are not as bad if they fail-there is only a 90-day ALS immediately imposed upon a failed test. There is also an additional OVI charge called an OVI Refusal the individual faces by not submitting to a test.
Anyone suspected of operating a vehicle under the influence should refuse a breath test (and any and all field sobriety tests for that matter). While it is true an ALS will be imposed, refusing helps the accused defend the case while submitting only serves to aid the prosecutor in proving the State’s case and as we now know, may even serve to skew test results to the accused’s detriment.
If you or someone you know has been charged with an OVI, feel free to contact the experienced criminal defense attorneys at Rittgers & Rittgers at 513-496-0134.