Rittgers Rittgers & Nakajima
Rittgers Rittgers & Nakajima


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Breath Test Problems Coast to Coast Intoxilyzer Results And DUI in Ohio

Ohio motorists accused of drunk driving often feel that a positive result from a breath testing device means that they have no alternative but to plead guilty. But as shown by two recent reports of widespread problems with breathalyzer implementation by law enforcement in Los Angeles and Philadelphia, breath test results must be closely examined to protect drivers’ rights in DUI and OVI cases.

In April, the Ventura County, California, Sheriff’s Department discovered that several of its 125 new breathalyzers were providing faulty readings. The county had recently upgraded to the Alco-Sensor V breathalyzer model, which was released last year. An executive at Intoximeters, Inc., told the Los Angeles Times that its testing had confirmed that problems existed and stated that “it’s not in our interest to have instruments that produce erroneous readings.” Ventura County prosecutors will likely have to review hundreds of convictions of wrongly punished drivers.

In May, Philadelphia court officials began to receive a flood of requests for new trials after news emerged that half of the city police department’s breath test machines were improperly calibrated during a 14-month period in 2009 and 2010. County prosecutors estimate that over 2,100 cases were decided based on faulty breathalyzer results during that time. Inevitably, some of these Pennsylvania drivers were wrongly convicted due to breathalyzer calibration errors.

Ohio DUI Lawyers and Clients’ Rights

Ohio provides stiff penalties for drivers who refuse to submit to a breathalyzer test, as well as enhanced criminal penalties for second DUI suspects who refuse to blow. Despite the potential shortcomings of the technology, the U.S. Supreme Court and Ohio Supreme Court have repeatedly held that such “implied consent” laws are constitutional. Even worse for Ohio drivers: a 1984 case, State v. Vega, has made it very difficult for a defendant charged with operating a motor vehicle while under the influence of alcohol to attack the reliability and validity of breath-testing instruments approved by the Ohio Department of Health.

One type of breath testing device, the Intoxilyzer 8000, has been the source of controversy around the country due to the manufacturer’s refusal to make the software that processes results freely available for analysis. That controversy initially caused Ohio officials to reject the model, but the Intoxilyzer 8000 is currently in use in the vast majority of Ohio counties.

Two recent cases involving the Intoxilyzer 8000 suggest that the time is ripe for Ohio courts to revisit the holding in State v. Vega and allow Ohio DUI/OVI attorneys to present evidence of its shortcomings. In late May, an Athens County Municipal Court judge allowed a DUI defense lawyer to call expert witnesses to challenge Intoxilyzer results, and a Pickaway County judge has banned results from the device until the state provides a full assessment of its accuracy.

Fighting a DUI Conviction by Investigating All Fronts

A conviction for driving under the influence, drugged driving or operating a vehicle while impaired can mean incarceration, loss of driving privileges and other severe consequences. For that reason, defendants are entitled to due process of law and prosecutors must prove all elements of a crime beyond a reasonable doubt.

A few of the reasons why breath-test results may be faulty:

  • The operator may have improperly warmed up or failed to clean the device
  • The suspect had a pulmonary condition or other health problem (even chronic heartburn) that interfered with collection of an accurate sample
  • The driver may have been recently exposed to a gas, vapor or other substance, such as a volatile paint mixture or mouthwash, that produces a false positive result

By focusing on all aspects of a DUI case, an Ohio criminal defense lawyer with experience handling OVI/DUI/DWI cases can provide aggressive defense against criminal accusations and also represent a driver at the Administrative License Suspension hearing. There are several crucial stages in the criminal justice process that provide opportunities to achieve positive outcomes, and a seasoned attorney knows how to seize those moments to a client’s benefit.

Even if breath test results are not an issue, circumstances such as field sobriety tests or an officer’s inconsistent reports and testimony about the driver’s condition may undermine the prosecution’s case. With consequences ranging from increased insurance rates to potential job loss, fighting a DUI/OVI conviction can lead to a more just result.

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