Breath Testing

November 13, 2023

Some Allegations of Breath Test Refusals Are Unfair

Breath-Test-300x200 Ohio’s DUI laws (called ‘OVI’ in Ohio) criminalize driving with a prohibited breath alcohol concentration. To determine whether a person has a prohibited breath alcohol concentration, law enforcement officers use breath-testing machines. If a person refuses a breath test, there are consequences. However, differences in height, age, gender, and smoking habits make some people physically unable to provide a sufficient breath sample. As a result, some people are accused of refusing a breath test when they didn’t.

March 6, 2021

Discarding Evidence In DUI / OVI Breath-Test Cases

by Shawn Dominy

Datamaster-and-evidence-ticket-300x228 A police officer discarded evidence that a DUI suspect blew under the ‘legal limit’. According to WCNC, the suspect was involved in a one-car accident and pulled her vehicle into a gas station parking lot. An officer went to the gas station and had the suspect perform field sobriety tests. The officer took the suspect into custody and administered multiple breath tests. The officer obtained two evidence tickets with results from the breath tests. The officer threw-out the evidence ticket with a result ‘under the limit’, kept the evidence ticket with a result ‘over the limit’, and charged the suspect with DUI (called ‘OVI’ in Ohio).

March 7, 2020

Appeals Court Upholds OVI Expert Exclusion In Columbus Case

by Shawn Dominy

Referee-red-card-300x200 OVI trials sometimes involve testimony from expert witnesses. Those witnesses include pharmacologists who testify about the accuracy of the defendant’s breath test result. A recent decision from an Ohio Court of Appeals demonstrates the importance of assessing the quality of the expert witness report and evaluating the utility of anticipated expert testimony.

January 11, 2020

‘Times’ Article Raises Questions About Ignition Interlock Devices

by Shawn Dominy

Ignition-interlock-in-use-300x200 It makes the roads safer, except when it makes the roads more dangerous. It’s a fair consequence for a person convicted of DUI/OVI, except when it’s unfair. The ignition interlock device has been used increasingly by Ohio and most other states to prevent drunk driving. As illustrated by a recent article in The New York Times, the device intended to encourage safe roads and fair punishment has actually caused accidents and unjust punishments. What should Ohio do?

January 12, 2019

Intoxilyzer 8000 Resurrected For Use In Ohio DUI / OVI Cases

by Shawn Dominy

Intoxilyzer-8000-I-Make-Mistakes-300x263 I thought it was dead. In the jurisdictions where I handle OVI cases, I had not seen the Intoxilyzer 8000 used for years. To my surprise, I recently received discovery materials which showed my client’s breath test was done on an I-8000. Given the challenges faced by this machine when it was first brought to life in Ohio, I thought the State may let it rest in peace.

January 13, 2018

Cleaner Can Contaminate Breath Tests In Ohio DUI / OVI Cases

by Shawn Dominy

Hand-sanitizer-300x200

Clean hands is an obsession for some people. In addition to frequent hand-washing, many people also use alcohol-based hand sanitizers. Aside from the potential issues with dry skin and weakened immune system (not to mention OCD!), use of hand sanitizers can also affect the results of a breath alcohol test.

August 31, 2017

Court Downplays Importance Of Breath Tester Reliability In Ohio DUI / OVI Cases

by Shawn Dominy

Simulator

When a machine is given the power to convict a person of a crime, we should be absolutely certain the machine is working properly. In Ohio, machines are used to measure the concentration of alcohol in the breath of drivers. A driver who operates a vehicle with a breath alcohol concentration of .080 or more is guilty of OVI, even if that person’s ability to drive was not impaired by the alcohol. As breath-testing machines have that much power, the accuracy and precision of the machines is critical, so they are subjected to a weekly instrument check. A recent case by an Ohio appellate court downplays the importance of those weekly instrument checks.

February 4, 2017

What Happens When Two Tests Give Different Results In An Ohio DUI/OVI?

by Shawn Dominy

Joe was arrested for DUI / OVI, and the officer had Joe take a breath test and a urine test. The breath test showed an alcohol level under Ohio’s limit, and the urine test showed an alcohol level over Ohio’s limit. Based on the urine test result, Joe was prosecuted for operating a vehicle with a prohibited concentration of alcohol in his system. Should Joe be found guilty of OVI?

January 29, 2017

Breath Alcohol Tester From ‘Shark Tank’ Settles FTC Complaint

by Shawn Dominy

A smartphone app for breath-alcohol-testing was so promising that all five investors on Shark Tank collaborated on a deal for the first time. In 2013, Charles Yim went on the show and pitched his app to the Sharks. The Sharks collectively invested $1 million in Yim’s company Breathometer, Inc. for 30% of the company’s equity. Three years later, the company was the subject of an FTC complaint, and the complaint was recently settled.

November 12, 2016

Calibrating Breath Testing Machines In Ohio DUI/OVI Cases

by Shawn Dominy

Over 20,000 DWI cases in New Jersey are being called into question due to problems with the recalibration of breath-testing machines. According to New Jersey 101.5, Sgt. Marc Dennis skipped a critical step each time he recalibrated the machines. Plaintiffs in a class-action lawsuit now seek to vacate thousands of convictions in which evidence was produced by those breath-testing machines. Although this debacle occurred in New Jersey, it illustrates the importance of properly maintaining breath-testing machines in Ohio DUI/OVI cases.