When Does “Expired” Not Really Mean “Expired” In Ohio DUI/OVI Cases?

A police officer is only authorized to administer breath tests in O.V.I. (D.U.I.) cases if the officer has a valid operator’s permit issued by the Ohio Department of Health. To obtain an operator permit, an officer must complete a basic operator training course. Operator permits expire one year after the permit’s issue date, and an officer can apply to renew a permit up to six months before it expires. To renew a permit, an officer must complete an in-service renewal course. These regulations are contained in chapter 3701-53 of the Ohio Administrative Code. A breath test is only admissible if the operator had a valid permit.

An expired operator’s permit was the central issue in the case of State v. D*. In that case, Ms. D* was charged with O.V.I. (D.U.I.) in the Franklin County Municipal Court. I represented Ms. D*, and we filed a motion to suppress the breath test because the officer that administered the test allowed his permit to expire, then renewed it 25 days after it expired. Our argument was that the officer could not renew his permit because it expired, so he had to go through the process of obtaining a new permit, which he did not do. The judge in the trial court agreed with our argument and threw out the breath test.

The prosecutor’s office appealed the judge’s decision, and the Tenth District Court of Appeals was not so impressed with our argument. The Court of Appeals acknowledged that the officer did not strictly comply with the requirement that he renew his permit within one year. However, the Court concluded that the officer substantially complied with that requirement because renewing the permit 25 days after it expired was a “de minimis or minor procedural deviation”. As a result, the court of appeals reversed the trial judge’s decision and sent the case back to the trial court.

For Ms. D*, there was ultimately a good resolution to her case. After her case was sent back to the trial court, there were other motions to suppress that had to be addressed. Rather than addressing those motions, the O.V.I. (D.U.I.) charge was amended to a no-points, non-moving offense. She paid her fine, and she did not wait until 25 days after the fine’s due date to pay it.

Sometimes expired does not really mean expired. Only sometimes…I do not recommend using this reasoning when your milk container says the milk expired 25 days ago.