Columbus OVI/DUI Attorney Blog

In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.

In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: "The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases."

The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect's bodily integrity that implicates the most personal expectations of privacy. A warrantless search of a person's body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is 'exigent circumstances', times when "there is a compelling need for official action and no time to secure a warrant". One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates 'exigent circumstances'.

Continue reading "U.S. SUPREME COURT DECISION RAISES QUESTIONS ABOUT BLOOD TESTS IN OHIO D.U.I./O.V.I. CASES" »

For the first time, an appellate court in Central Ohio addressed whether evidence from an Intoxilyzer 8000 is admissible in an O.V.I./D.U.I. trial. The court of appeals ultimately decided that the defendant is prohibited from challenging the general reliability of the Intoxilyzer 8000, so the results of that machine's breath tests are admissible. The court's opinion, however, contained language questioning whether that prohibition should continue to be the law in Ohio O.V.I. cases.

The case is State v. Reid. A previous post in this blog (June 11, 2011) discussed the ruling of the trial court. The trial judge concluded that breath test results from the Intoxilyzer 8000 are not reliable enough to be admitted as evidence. The trial judge wrote, "Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in O.V.I. cases." Because the breath test result was not reliable, the judge excluded breath test evidence from the defendant's trial. Without the breath test evidence, the defendant took the case to trial and was found not guilty. The prosecution appealed the trial judge's decision to the Fourth District Court of Appeals.

Continue reading "APPELLATE COURT RULES ON INTOXILYZER 8000 ADMISSIBILITY IN CENTRAL OHIO OVI CASES" »

Trooper Mark Winder stopped Tyler McNeely for speeding and observed the usual trilogy of intoxication signs: odor of alcohol, bloodshot eyes, and slurred speech. Winder gave McNeely field sobriety tests and arrested him for driving while intoxicated. The trooper drove McNeely to a hospital and asked McNeely to give a blood sample. McNeely declined. Without obtaining or even seeking a warrant, the trooper had a lab technician take a blood sample from McNeely while McNeely was restrained. The blood sample was later analyzed, and it was determined that the concentration of alcohol in the blood was .154.

The trial court suppressed the results of the blood test, and the case made its way through the Missouri Court of Appeals and the Missouri Supreme Court to the United States Supreme Court. The question before the Supreme Court is: whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The McNeely oral argument was held earlier this month and can be heard here.

The prosecution in McNeely argues that involuntary warrantless blood tests are necessary to effectively enforce D.U.I. laws. The prosecution points out that alcohol in a suspect's blood dissipates with time, so the blood alcohol evidence is destroyed if time is taken to obtain a warrant. Due to those "exigent circumstances", the prosecution states, officers should be permitted to draw blood without a warrant.

Continue reading "SHOULD OHIO POLICE BE ABLE TO DRAW BLOOD AGAINST YOUR WILL?" »

Previous posts in this blog discussed developments with the Intoxilyzer 8000 breath-testing machine. On May 3, 2012, the post summarized the Gerome case in Athens. In Gerome, the judge held the defendant is permitted to introduce evidence of factors affecting the breath test results. Another post reported the disappearing Intoxilyzer 8000 records maintained by the Ohio Department of Health. On June 11, 2012, this blog reported the judge's decision in the Reid case in Circleville. In Reid, the prosecution did not present expert witnesses, and the judge concluded the machine's results are not reliable enough to be considered as evidence. After the Reid decision, prosecutors have taken a couple different approaches with Intoxilyzer 8000 cases.

In the Bedford Municipal Court, the prosecutor used a novel approach. At the prosecutor's request, the two judges held a hearing with an "expert" witness for the prosecution but with no defense attorney even involved. When one side is not present, that's an ex parte hearing, which is generally prohibited in criminal law. With the "expert" witness from the Ohio Department of Health not being cross-examined by a d.u.i. defense attorney, guess what happened? The judges concluded that the Intoxilyzer 8000 is accurate and reliable! In addition to having the appearance of impropriety, the decision is not binding because it was held ex parte.

In the Marietta Municipal Court, the prosecutor is doing things in the way contemplated by the adversarial system. In response to the defense challenging the reliability of the 8000, the prosecutor provided reports of four expert witnesses, and the judge is holding hearings in which the defense can cross-examine the prosecution's expert witnesses. Like the Gerome case, the local defense bar obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Timothy Huey and me). On November 15, 2012, the first day of hearings was held, and two of the four expert witnesses testified. I had the privilege of cross-examining the manager of engineering for CMI, the manufacturer of the 8000.

Two additional days of testimony have been scheduled for the Marietta case. In addition to the prosecution witnesses, the defense is going to call its own expert witnesses to discuss the 8000's reliability. When a decision is issued, which will be a few months, I'll report it here.

There are rules for blood testing, and they aren't new. If the prosecution wants to admit a blood test as evidence in an Ohio O.V.I./D.U.I. case, the prosecution has to prove certain procedures were followed for the blood test. A few days ago, an Ohio court of appeals held that the procedures weren't followed, so the blood test should have been thrown out in Statev. Ragle.

The procedures that must be followed for an Ohio O.V.I./D.U.I. blood test are listed in chapter 3701‑53 of the Ohio Administrative Code. Section 3701-53-05 says "Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant...." In the Ragle case, there was no testimony about whether the needle was sterile and dry, and when the nurse was asked if there was an anticoagulant in the container where the blood was stored, she said: "You know, I don't have any idea what's in there."

The Ohio 9th District Court of Appeals concluded that the prosecution did not prove compliance with the rules in Section 3701-53-05. As a result, the court of appeals reversed the defendant's O.V.I. conviction. This result is not surprising. What's surprising is that the trial court concluded the blood test was admissible with testimony that "I don't have any idea" whether the rules were followed.

The Ragle case is a good example of an Ohio D.U.I./O.V.I. case that may seem hopeless for the defendant at the beginning (a blood test result over the limit) but turns out to be problematic for the prosecution. It's a good reminder that an Ohio D.U.I./O.V.I. lawyer needs to fully investigate cases, file motions to suppress evidence, and litigate those motions to effectively represent clients in Ohio D.U.I./O.V.I. cases.

The State of Ohio may be regretting its $6.4 million purchase of Intoxilyzer 8000 breath-testing machines. In State v. Gerome, the judge wrote a decision critical of the Intoxilyzer 8000 that stated the machine is "capable of producing an inaccurate result." In Statev. Reid, the judge decided the Intoxilyzer 8000 result was not even reliable enough to be admitted as evidence.

Implementing and maintaining the Intoxilyzer 8000s is the responsibility of the Ohio Department of Health's (ODH) Bureau of Alcohol and Drug Testing. Before the Intoxilyzer 8000s were purchased, individual police departments maintained breath testing machines and the records for the machines. Now, ODH maintains the records for all Intoxilyzer 8000s in Ohio. Like many states, Ohio maintains those records online where, as public records, they can be viewed by anyone at any time.

The records are changing and disappearing. Until recently, the records for breath tests indicated how many "sample attempts" there were in a test. After there were tests with unusually high numbers of sample attempts (indicating a possible problem with the machines), all records of breath tests were changed to delete the number of sample attempts. Also deleted from all records was the breath volume and duration of the breath sample. The records for breath tests also used to indicate the results of "subject test 1" and "subject test 2". After a judge found the test results did not comply with Ohio regulations (written by the Department of Health), the Department of Health changed all of the online records to say "subject sample 1" and "subject sample 2". After Intoxilyzer 8000 machines gave outrageous results, (like 10.00 and 23.00), the records of those tests were entirely deleted.

Is ODH permitted to alter and delete records? According to Ohio law, and written on the "Breath Instrument Data Center" of the ODH website, records of breath tests "shall be retained for not less than three years". Interestingly, this requirement is contained in a regulation authored by ODH. Implicit in that regulation seems to be a requirement that the records be retained without being altered. The deletion and altering of records may be more than a violation of a regulation. Ohio Revised Code section 2921.12 (Tampering With Evidence) says no person shall "alter, destroy, conceal or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such a proceeding or investigation". Violation of this statute is a felony.

Whether a felony has been committed or not, altering and deleting records that are used as evidence in court has the appearance of impropriety. The ODH may have crossed the line in its efforts to protect the State's multi-million-dollar purchase of machines that courts are calling unreliable.

Occasionally, evidence in Ohio O.V.I. (D.U.I.) cases comes from a blood sample taken at a hospital. When the blood sample is obtained in a hospital setting, issues arise regarding the admissibility of the blood test. One issue is whether the suspect's consent to giving the blood sample is valid. For the second time in a year, a court of appeals has concluded that a defendant's consent to a blood draw was not valid because it was not made knowingly and voluntarily.

The case in which the court of appeals reached this conclusion is State v.Rawnsley. In Rawnsley, the defendant was involved in a two-car accident and taken to the hospital. At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test. Ohio's 'implied consent' law says there is an Administrative License Suspension for refusing the test or testing over the limit. The defendant consented to a blood test, and the result was presumably over the limit. The other driver involved in the accident was seriously injured, so the defendant was charged with Aggravated VehicularAssault.

The appeals court analyzed whether the defendant's consent to the blood test was valid. The court reasoned that, for the defendant to be subjected to an Administrative License Suspension, the defendant must be under arrest. As this defendant was not under arrest, she could not be subjected to an Administrative License Suspension for refusing the test. Because the officer erroneously told the defendant her license would be suspended for refusing the blood test, the defendant's consent to the blood draw was not made knowingly and voluntarily. As her consent was invalid, the blood test evidence was suppressed. The prosecution will not have to decide whether there is enough evidence to go forward with the charge of AggravatedVehicular Assault without the blood test evidence.

The officer was in a difficult position because he was following the typical protocol for O.V.I. cases, but there are some exceptions for unusual circumstances. The best practice for an officer in that position is to obtain a search warrant for the defendant's blood sample rather than relying on the defendant's consent. This case illustrates some of the complexities of Ohio O.V.I. law and the need for a skilled O.V.I. / D.U.I. lawyer.

In Miami, there's nothing strange or tragic about a police officer riding down the beach on an ATV. What makes this incident strange is the on-duty officer is taking a female passenger on a joyride while he's on duty. What makes this incident tragic is the officer plows into two pedestrians and severely injures both.

According to the Miami Herald, the officer and his partner went, on-duty, to a bachelorette party. After drinking and dancing with the women at the party, the officer gave the bachelorette a ride on his ATV and struck the two pedestrians. One suffered a broken leg, and the other was treated for a broken leg and a damaged spleen. Five hours after the accident, the officer's blood alcohol concentration was .088. The officer now faces charges of D.U.I. with serious bodily injury and Reckless Driving with serious bodily injury. He posted bond of $30,000 and is scheduled to appear in court on August 24, 2011.

In Ohio, the officer would be charged with two counts of Aggravated Vehicular Assault. A person is guilty of Aggravated Vehicular Assault if it is proven that his operation of the vehicle under the influence (or over the legal limit) caused serious physical harm to another person. The penalties include a prison sentence of one year to five years (on each count) and a license suspension of up to ten years (on each count).

It is curious that it took five hours to take a blood sample from the officer. The blood sample was drawn by Miami Fire & Rescue personnel. In Ohio, a blood test is admissible if the sample is drawn within two hours of operating the vehicle (R.C. 4511.19). After two hours, the blood test is admissible only with expert testimony.

The officer has already been fired from the Miami Beach Police Department. According to the Miami Newtimes Blogs, he has a less-than-stellar record with the police department. Strange and tragic indeed.

The last post of this blog discussed the Gerome case in Athens, Ohio. In that case, which is still pending, the judge will make decisions about the reliability of the Intoxilyzer 8000 and whether a defendant must be given an opportunity to challenge the breath test's general reliability at trial. In a similar case in Circleville, Ohio, the judge recently ruled that evidence from the Intoxilyzer 8000 is not even reliable enough to be introduced as evidence at trial.


The case in Circleville is State v. Reid. In that case, three defendants were charged with O.V.I. and tested over the legal limit on Intoxilyzer 8000 breath tests. The defense attorney filed a motion challenging evidence concerning the Intoxilyzer 8000, and Judge Gary Dumm ruled in favor of the defendants.

In his decision, the judge stated, "The court has an obligation as a gatekeeper of evidentiary concerns to make its own assessment of the accuracy and reliability of the Intoxilyzer 8000 and this court has heard no evidence from ODH to lead it to believe that the machine is accurate and reliable." The judge went on to conclude, "Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in OVI cases."

According to the Circleville Herald, Intoxilyzer 8000s in the Circleville area were immediately taken out of service and replaced with other breath-testing machines. According to my sources, the Ohio State Highway patrol is returning to using different breath-testing machines throughout the state. If the Intoxilzyer 8000 is no longer used in Ohio, what will the state do with the 700 machines it purchased at a cost of $6.4 million?

In previous posts, this blog has discussed two separate but related issues. The post on May 3, 2010 explained that defendants in Ohio O.V.I. cases do not have the ability to challenge the general reliability of breath testing machines at trial due to the holding in State v. Vega. The post on May 29, 2010 described how the Ohio Department of Health purchased 700 Intoxilyzer 8000 breath testing machines and is implementing use of the machines throughout Ohio. This post ties together those two issues because a case in Athens County involving the Intoxilyzer 8000 may open the door to challenges regarding the general reliability of breath tests.

The case in Athens County is State v. Gerome. In that case, the defendant was arrested for O.V.I. and tested over the legal limit on an Intoxilyzer 8000. The trial judge indicated that this case would be a test case to assess the reliability of the Intoxilyzer 8000. The local attorney representing the defendant obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Jon Saia and Timothy Huey).

The defense attorneys filed a motion challenging evidence concerning the Intoxilyzer 8000, and the prosecutor filed a motion seeking to exclude evidence at trial regarding the reliability of the breath test. The issues are framed as: (1) whether the holding in Vega still applies due to changes in the O.V.I. statute and case law; (2) whether evidence from the Intoxilyzer 8000 is reliable enough to be introduced as evidence at trial; and (3) if evidence from the Intoxilyzer 8000 is admissible at trial, must the defendant be given an opportunity to challenge the breath test's general reliability.

The Gerome case has captured the attention of the media. The case was the subject of multiple television news report and a Columbus dispatch article. The first hearing was held on May 28, and the next hearing will be held in June. It is anticipated that the trial judge will issue a decision by the end of June.

As part of the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers, I have had the pleasure of working on this case in preparation for these hearings. It is our hope that the Gerome case will mark the beginning of a new era in defending clients against O.V.I. charges in Ohio.

As a D.U.I. defense attorney, this is one of the most frequently asked questions I receive (second only to "how can you do that?"). The answer is surprisingly complicated: it depends on factors that include how much alcohol you drank, whether you are more concerned about the short-term or long-term status of your driver's license, whether you have prior convictions, whether you're on probation, and whether you have a commercial driver's license.

If you are investigated for D.U.I. (O.V.I.), the process is going to involve the officer asking you to submit to a breath, blood or urine test. The first question to ask yourself is this: do I have a concentration of alcohol in my blood that is .08 or higher? Unfortunately, most people that have been drinking don't know the answer to this. While there are many variables that affect one's blood alcohol concentration (number of drinks, time period of drinking, weight, gender, etc.), a simple estimation can be found at the "drink wheel".

If you think there is a chance you are over .08, you probably don't want to take the test (subject to exceptions, including those discussed below). If you take the test, the prosecution will have additional evidence to use against you in court. If you don't take the test, there will be no test result to use against you, and the prosecution will have to prove that consuming alcohol impaired your ability to drive. If you take the test and the result is over .08, the prosecution must simply prove you operated a vehicle with a blood alcohol concentration over .08, even if the alcohol was not impairing your ability to drive.

A downside of declining the test is that the immediate license suspension is longer. If you refuse the breath test in Ohio (and you do not have prior convictions), the Administrative License Suspension is one year, and you are eligible for limited driving privileges in 30 days. If you take the test and are over the limit, the Administrative License Suspension is 90 days, and you are eligible for limited driving privileges in 15 days. The length of the Administrative License Suspension (and the waiting period for driving privileges) increases based on prior convictions and prior test refusals.

If you have prior convictions, there is additional incentive to take the test. Under Ohio Law (R.C. 4511.19[A][2]), a person with a prior O.V.I. conviction within 20 years who refuses the test is charged with a separate offense for refusing the test. That separate offense carries a jail sentence that is double the jail sentence for the O.V.I. charge.

You may also have additional incentive to take the test if you are on probation for an alcohol or traffic offense. Judges commonly order, as a condition of probation, that defendants not refuse chemical tests requested by law enforcement officers. If you are on probation and refuse the test, the refusal may be a probation violation that can result in a jail sentence.

If you have a commercial driver's license (CDL), refusing the test can be disastrous. Although a court can grant limited driving privileges during an Administrative License Suspension, a court cannot grant privileges to use a CDL. That means, if you refuse and get a one-year license suspension, it is actually one year without using the CDL.

Although "should I take the test" is a frequently asked question, there is not an easy answer. Hopefully, the issues discussed here will help you think through the issues to make the best decision. The issues are discussed from a strategic perspective: the best course of action is don't put yourself in a position where you have to make this decision.

Historically, if a driver refused to give a sample of blood, breath or urine, the driver's license would immediately be suspended for refusing, but there would be no alcohol test to use as evidence against the driver. Things changed in 2009, when the Ohio legislature passed a law saying, if a person with prior O.V.I. convictions refuses to submit to a chemical test, "the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person's whole blood or blood serum or plasma." R.C. 4511.191(A)(5).

The law authorizing forced blood draws was recently reviewed by an Ohio court of appeals in State v. Slates. Slates was arrested for O.V.I. and had prior convictions. The arresting officer requested that Slates submit to a breath test, but Slates refused, so the officer took him to the emergency room for blood to be drawn. Slates repeatedly said he did not want his blood drawn and physically resisted. The officer held down his arm while the nurse inserted the needle and drew his blood. The trial court ruled that the blood test would be admissible at trial, so Slates pled No Contest to O.V.I. and appealed to the Ninth District Court of Appeals.

On appeal, Slates argued that the law authorizing forced blood draws is unconstitutional because a forced blood draw is an unreasonable search and seizure. The Court of Appeals found that the intrusion on an individual's Fourth Amendment interests is outweighed by the promotion of the government's legitimate interest in public safety. Therefore, the court concluded, a forced blood draw in these circumstances is constitutional.

A person with prior O.V.I. convictions who refuses a chemical alcohol test will be in a lose-lose situation: there will be a longer Administrative License Suspension for refusing the test, and the results of the blood test will be admissible at trial. At least Ohio has not gone to the use of "phlebotocops" like those in Arizona, where police officers conduct forced blood draws on the street.

The last post for this blog discussed the defendant's right to confront and cross examine the people responsible for the chemical test that determines a defendant's blood alcohol level. On one hand, the United States Supreme Court strengthened this confrontation right in Melendez-Diaz. On the other hand, an Ohio court of appeals in State v. Collins later held it is not a violation of the defendant's confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it. This post addresses a case decided after the Collins decision.

In the case of State v. Syx, the prosecution sought to introduce evidence that the defendant's blood test showed an alcohol concentration of 0.11. The defendant filed a motion to suppress the results of the blood test. At the hearing on that motion, the prosecution did not call as witnesses the nurse that drew the blood sample or the toxicologist who performed the blood test. Instead, the prosecution called the chief toxicologist to testify about the blood test. The chief toxicologist was not present for the blood draw and was not involved in testing the blood. Nevertheless, the trial court concluded that the blood test was admissible.

The court of appeals concluded otherwise. The Court said the defendant has a constitutional right to cross-examine the nurse and the toxicologist. Because the prosecution did not present the testimony of those witnesses, the prosecution failed to prove that the blood test substantially complied with Ohio regulations regarding blood tests. As a result, the court of appeals reversed the defendant's conviction.

The court of appeals in Syx recognized that the motion to suppress hearing is the only time the defendant can challenge the admissibility of the breath/blood/urine test, so the defendant must be permitted to cross examine, at the motion hearing, the individuals responsible for the test. This decision gives hope that there is, in fact, a right to challenge the most critical evidence in O.V.I. cases.

Imagine a case in which the defendant is not permitted to challenge the most critical evidence. For example, imagine a products liability case in which the plaintiff says, "we know the product was defective because we did scientific testing which showed it was defective." The defendant would challenge the scientific testing through cross examination to show why the plaintiff's test was unreliable. In OVI cases in Ohio, the prosecution often introduces a scientific chemical test to prove the defendant's concentration of blood, breath, or urine. The defense, however, is prohibited from challenging the general reliability of those chemical tests due to State v. Vega (see blog entry May 3, 2010).

As the defense cannot challenge the chemical test at trial, the defense challenges the admissibility of the test by filing a motion to suppress the chemical test and having a hearing on that motion. At the hearing, the prosecution must demonstrate that the machine used for the test was maintained in compliance with regulations issued by the Ohio Department of Health.

One would expect that, at the motion hearing, the defense would have an opportunity to cross-examine the person that conducted the test and maintained the machine. In fact, the United States Supreme Court declared a similar right to confront witnesses in Melendez-Diaz v. Massachusetts. In that case, the prosecution was trying to prove the defendant possessed cocaine and introduced a laboratory report concluding the substance possessed by the defendant was in fact cocaine. The Court held that admitting the laboratory report without having the testimony of the person who conducted the test violated the defendant's right to confront witnesses against him.

Even after the Melendez-Diaz decision, however, some Ohio courts continue to admit evidence regarding the maintenance of chemical-testing machines without the testimony of the person responsible for it. In State v. Collins, decided in October of 2010, the court of appeals held that it is not a violation of the defendant's confrontation rights to admit records at the motion hearing regarding maintenance of the breath-testing machine without the testimony of the person that maintained it.

Under Ohio law, the motion hearing is the time to challenge the admissibility of the breath/blood/urine test, and some courts (like that in Collins) now say the defense has no right to cross examine the person that maintains the testing machine to make its results reliable. Hopefully, this issue will soon be addressed by the Ohio Supreme Court and decided differently.

In a previous post, I discussed the Intoxilyzer 8000. The Ohio Department of Health made a controversial purchase of 7000 of these breath-testing machines, and a few are being used in central Ohio D.U.I./O.V.I. cases. In the previous post, I said I would give developments from my first 8000 case.

My client was pulled over for speeding; based on the officer's visual estimation of my client's speed. The officer observed the odor of alcohol and had my client get out of the car. The officer administered field sobriety tests, which my client reportedly failed. The officer arrested my client, took him to the police station, and asked him to take a breath test. My client took the breath test twice on the Intoxilyzer 8000. The first test result was .203, and the second test result was .235.

I reviewed the records and found an obvious error. The written report printed by the 8000 said in bold letters "Invalid Test Information". According to the Intoxilyzer 8000 manual provided by the Ohio Department Of Health, this error code is produced when the "start" button is pressed during the testing sequence.

I filed a motion to suppress the results of the breath test, in addition to a motion to suppress the field sobriety tests. The prosecuting attorney acknowledged that the "invalid test" report was problematic, and the results of the breath test were suppressed. The judge also suppressed the results of the horizontal gaze nystagmus (HGN) test (where the suspect follows a pen with his eyes).

It is disappointing that, despite the bold letters saying "Invalid Test Information", my client was charged with D.U.I./O.V.I. for having a prohibited concentration of alcohol in his breath. In addition, my client's license was taken due to an administrative license suspension based on that same invalid test. Thankfully, he now has his license back, and the case will go to trial, without evidence regarding the breath test and the HGN test.