Articles Tagged with Breath Testing

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.

The case is State v. Hicks. In that case, Hicks was arrested for OVI and taken to a police station for a breath test. The result of the breath test was over .080, so Hicks was charged with OVI ‘per se’. The defense lawyer filed a motion to suppress the breath test, and the judge held a hearing on that motion.

Simulator

Breath Testing Machines Must ‘Pass The Test’ Each Week
For a breath test result to be admissible as evidence, the prosecution must prove, among other things, at least two critical facts: (1) the machine was working properly at the time of the defendant’s test; and (2) the machine was maintained in substantial compliance with the regulations in the Ohio Administrative Code (OAC).

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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?

Test-results-300x220This scenario is not hypothetical:  “Joe” was my client.

Joe came to the attention of the officer because one of Joe’s headlights was out.  The officer turned around to follow Joe and reportedly observed Joe’s tire go over the lane line one time.  The ‘marked lanes’ violation was not recorded on video, although the remainder of the incident was.

The officer stopped Joe and noticed the odor of alcohol.  When asked, Joe explained he went to a wings restaurant and had a few beers with dinner.  The officer administered field sobriety tests, and Joe’s performance on the tests was good but not great.  The officer arrested Joe and took him to the police station.

A Tale Of Two Tests
At the police station, the officer asked Joe to submit to a breath alcohol test.  Joe gave a sample of his breath, and the breath-testing-machine produced a result of .069 (grams per 210 liters of breath);  under Ohio’s limit of .080.  The officer had Joe provide a urine sample because the officer had a hunch Joe smoked marijuana.

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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.

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The History-Making Shark Tank Pitch
The pitch to the Sharks sounded great.  People regularly drink alcohol and then drive, and nobody knows when they are over .08.  By downloading the app and plugging in a small piece of hardware to a smartphone audio jack, consumers could blow into the hardware and know their blood alcohol concentration in seconds.  In addition, the app would tell them how much time it would take to sober up, and it could even call a cab with one push of a button.

The Sharks were intrigued.  Yim was asking for one Shark to invest $250,000 for ten percent of the company’s equity.  Mark Cuban quickly offered to invest $500,000 for 20% equity.  Yim then invited the other Sharks to join, and they did:  all five of them.  Ultimately, Cuban put up $500,000 for 15%, and the other four Sharks together put up $500,000 for another 15%.

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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.

Simulator

In Ohio DUI/OVI cases, there is a distinction between a calibration and a calibration check.  When breath-testing machines are built, the machines must be ‘taught’ to identify and quantify alcohol (ethanol).  That ‘teaching’ process is a calibration.  As a machine is being used by a law enforcement agency, the agency periodically runs a test to confirm the machine produces accurate results.  The test is done using a simulator like the one pictured here.  That periodic test is a calibration check.

Calibration checks, also referred to as ‘instrument checks’, are done at least once per week in Ohio.  The weekly instrument checks are conducted by the law enforcement agency which owns and/or operates the breath-testing machine.  Some agencies assign the responsibility to one officer, and, in other agencies, multiple officer share the responsibility of conducting weekly instrument checks.

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Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws.  A previous article in this blog gives a preview of the cases.  To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests.  Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases.  The Court’s decision will impact Ohio DUI/OVI cases.

US Supreme Court Interior

After considering 13 cases involving criminal refusal laws, the Court chose these three cases:  Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota.  These three cases were apparently chosen because they have three varying scenarios.  Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test.  Bernard challenged his conviction for refusing a breath test.  Birchfield argued his conviction for refusing a blood test was unconstitutional.  The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.

The Birchfield opinion analyzes the Fourth Amendment issues.  The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment.  Fourth Amendment law presumes a warrantless search is unreasonable.  Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.

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