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Criminal & DUI Defense Attorneys

Breath Test

An officer will conduct a breath test when they suspect someone is driving under the influence of alcohol. Submitting to a breath test is a nerve-racking experience. Thankfully, the better understanding you have about an OVI breath test, the better off you’ll be.

A breath test is the most common chemical test for OVI. Police prefer this test to blood or urine test because it’s simple to administer and the results are available instantaneously. However, law enforcement is required to abide by regulations set forth by the state when conducting a breath test.

Columbus, OH OVI Defense Lawyer

Contact Joslyn Law Firm if you believe law enforcement did not follow the required standards when collecting your breath sample. We will evaluate the facts of your case and formulate a robust defense strategy.

Call (614) 300 - 3025 to schedule a confidential consultation. Joslyn Law Firm defends those accused of OVI in central Ohio counties such as Franklin County, Delaware County, Union County and Madison County. 


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Ohio Breath Test Laws

There are rules a law enforcement officer must follow when they administer a breath test. If an officer fails to comply with these regulations, the test results may be inadmissible as evidence in court.

The breath test must be collected using one of the approved breath-testing instruments. Approved breath-testing machines include:

  • BAC DataMaster
  • Intoxilyzer 5000
  • Intoxilyzer 8000

There are many regulations surrounding breath test machines and how the test should be administered. For one, a breath sample must be collected within three hours of the violation, not the arrest. For the test results to be admissible in court, the testing machine must have been calibrated and properly maintained. We will request the records the police department is required to maintain regarding the machines to ensure they have been properly maintained.

Ohio law also requires a breath test to be conducted by a qualifying law enforcement officer. A law enforcement officer must have completed an operator-training course to qualify as a breath test administrator and demonstrate they can properly maintain and use the instrument. The breath test results will be inadmissible if the officer who collected them was not qualified.


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What is Implied Consent?

Ohio is a state with implied consent. This means any driver on the Ohio roadways is implicitly agreeing they will submit to a chemical test of breath, blood or urine when police suspect a driver is driving under the influence. You have the right to refuse chemical testing, and it’s in your best interest you do.

The officer requesting you submit to the test is required to warn you of the consequences if you refuse. They must inform you your driver’s license will be suspended and you will be required to pay a fee to have it reinstated. If you have a prior OVI conviction within ten years, the officer must also inform you refusal will result in increased penalties if you end up being convicted of the crime.

How long your license is suspended for refusal will depend on previous refusals. First time refusal will result in a one-year suspension while a second refusal is a two-year suspension.

Refusing a chemical test may not seem like a wise choice since your driver’s license will be suspended. But, if you submit to the test and are found to be over the legal limit, your driving privileges will be suspended. You still face the chances of having your license suspended regardless if you submit or not.


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Possible Breath Test Defenses

Listed below are some of the most common defenses to an OVI breath test. Keep in mind; no two OVI cases are alike. This means there is no one size fits all defense strategy for every OVI case. The best defense you can take is contacting an experienced OVI defense attorney who can help you explore your options.

Some of the most common defenses to an OVI breath test include the following:

  • Testing machine was not calibrated
  • Officer did not follow testing procedures
  • Officer was not qualified to conduct the test
  • Sample was not collected within three hours of offense
  • Residual mouthwash was present during testing
  • Records for the testing machine were not maintained properly.

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Additional Resources for Breath Test

Alcohol Testing | Ohio Administrative Code – Visit the Ohio Laws and Rules website to read the section of the Administrative Code covering alcohol testing. You can learn about testing methods and approved testing machines. You can also gain access to information about blood and urine testing.

Implied Consent | Ohio Revised Code – Read the statute over implied consent to learn more about the offense. You can read the legal definition of implied consent and learn about situations where an officer can collect a chemical sample without consent. You can also gain access to information about implied consent and commercial drivers.


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Columbus, OH OVI Defense Attorney

Breath testing machines are not flawless. Serious problems exist with these machines and the results are not always accurate or reliable. Joslyn Law Firm will examine how the test was conducted, the testing machine and whatever else necessary to achieve a positive outcome for you.

Call (614) 300 - 3025 to schedule your confidential consultation. We defend clients of OVI in counties across central Ohio including Pickaway County, Fairfield County, Licking County and more.


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Joslyn Law Firm