A little BackGround About Ohio Dui Laws

Ohio's main breath testing machine is the BAC DataMaster. The two other primary machines are the Intoxilyzer 5000 and the BAC Verifier (which is not manufactured any longer). These machines use a principle called infrared analysis. There are newer models of these machines approved for use in Ohio.

Most of what you read on the interent relating to problems with blood, breath, and urine cannot be advanced by a defendant in Ohio. In 1984, the Ohio Supreme Court severely limited the defenses a defendant can present concerning the "General Relibablity" of Ohio's testing program. In other words, Ohio DUI defense lawyers must primarily focus on the Ohio Department of Health regulations for problems with blood, breath, and urine.

It is critical that every single lawyer who represents a DUI motorist who gave a blood, breath, or urine sample be extremely familiar with Ohio's regulations concerning each type of sample.


WHAT IS AN "INVALID SAMPLE"?

An "Invalid Sample" is an error code on the BAC DataMaster. It alerts the operator to the presence of an interferant. In 1998, the Ohio Department of Health issued a memo to all Ohio police departments advising them to immediately begin a new step in the testing sequence. In the event of an "Invalid Sample", the operator is to wait 20 minutes before re-testing. Unfortunately, most judges do not recognize this memo as having the force and effect of law.

Accordingly, each lawyer facing an "Invalid Sample" case, must present a compelling argument that the ODH memo must be considered as a regulation and failure to follow the memo should lead to suppression of the breath test. . At least one judge in Ohio has ruled this way (Judge William Finnegan, former Marion County Municipal Court, in State vs. Miers, 01-02-04).

Do you have to have Yellow Plates?

Will you have to drive around with yellow license plates? If you are convicted of DUI and any of the following apply, the answer is "yes".

If you tested over .170% (breath or blood), you refused and you have a prior DUI in the past 20 years, or you have a prior DUI conviction in the past 6 years.

As a condition of restricted driving, you will need to drive a vehicle registered in your name with the yellow plates with red lettering (called Restricted Plates).

The plates can last as long as your license suspension. However, we have been successful in having the yellow plates removed early.

DUI Expungement

DUI Expungement

generally means the clearing, extraction and isolation of all records on file within any court, detention or correctional facility, law enforcement agency or criminal justice agency concerning a persons detection, apprehension, arrest, detention, trial, or disposition of an offense Within the criminal justice system by removal, deletion, erasing, sealing, destroying and other processes.DUI Expungements are not seen as a right by the state. It is a privilege granted to the petitioner only after the proper paperwork has been filed (correctly). The conditions vary from state to state but basically this privilege is reserved for 1st offenses and the reasons that an individual is seeking DUI expungement will also factor into the decision making process of the courts.

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ILLEGAL STOP OF PERSON OR VEHICLE – a driver cannot be stopped unless the officer has a reasonable and
articulate basis to believe that a traffic law or other law has been violated. Similarly, a person cannot be seized
unless a violation has occurred.

WEAVING INSIDE THE LANES IS NOT ILLEGAL – weaving without crossing any lines is not a violation of the law, and a
vehicle cannot be stopped for that reason.

ANONYMOUS REPORT OF DRUNK DRIVING – a car cannot be stopped simply because an anonymous citizen
reported that the driver was drunk.

STANDARD FIELD SOBRIETY TESTING IS INACCURATE – in healthy individuals, the one-leg stand test is only 65%
accurate, and the walk-and-turn test is only 68% accurate in determining if a person is under the influence. Those
persons with injuries, medical conditions, 50 pounds or greater overweight, and 65 years or older cannot be validly
judged by these tests.

NON-STANDARDIZED FIELD TESTS ARE INVALID – neither the Federal Government (NHTSA) nor medical science
considers touching your finger to your nose, or saying the alphabet, or counting backwards, as valid sobriety tests.

BREATH TESTING IS INACCURATE – virtually all experts concede that one breath test alone is unreliable. Breath
testing is subject to various inaccuracies, including a variance as much s +/- 12.5%, non-specificity for ethanol, etc.

BOOKING ROOM VIDEOS – Many police stations videotape suspects at the police station, where their speech is
clear and their balance is perfect, in spite of police testimony to the contrary.

IN-SQUAD VIDEOS – more and more often, the suspect’s driving and performance on field tests is being recorded;
often contradicting police testimony.

FAILURE TO PROVIDE SPEEDY TRIAL – If a client is not provided with a trial within a certain period of time, which
varies between states, through delays of the court or prosecutor, the charges must be dismissed.

POLICE BLOOD TEST INACCURATE – Many times, police blood testing fails to follow prescribed rules of testing,
analysis, or preservation recommendations.

HOSPITAL BLOOD TEST INACCURATE – Hospital blood tests overestimate a person’s true level by as much as 25%
in healthy, uninjured individuals, and are not statistically reliable in severely injured persons.

BREATH TEST OPERATOR UNLICENSED – Most states require a Breath Test Operator to possess a valid, unexpired
operator’s license, or the breath test result is inadmissible.

BREATHALYZER MACHINE MALFUNCTIONS – Most states specify that if there is a malfunction or repair of the breath
test instrument within a certain period of time before or after a suspect’s breath test, the results of the suspect’s
test are presumed invalid.


BREATH TEST OPERATOR LICENSE EXPIRED – Most states require that a Breath Test Operator must possess an
unexpired operator’s license, or the breath test result is inadmissible.

BREATH TEST DEVICE NOT APPROVED – A breath-testing instrument must be listed on the Federal List of Approved
Breath Evidential Instruments and the ISP approved list of Devices, or the results are inadmissible.

FAILURE TO PROVE DRIVING UNDER THE INFLUENCE – A defendant’s admission to driving, without more, does not
prove a charge of driving under the influence.

INDEPENDENT WITNESSES – Often times, independent witnesses to accidents, bartenders, hospital personnel and
others can provide crucial evidence of the defendant’s sobriety.

FAILURE TO MIRANDIZE – Prosecutors may not use as evidence the statements of a defendant in custody for a DUI
when the police have failed to properly issue Miranda Warnings.

FIELD SOBRIETY TEST IMPROPERLY ADMINISTERED – According to the National Highway and Traffic Safety
Administration, improperly administered field tests are not valid evidence of intoxication.

OFFICER’S PRIOR DISCIPLINARY RECORD – A police officer’s previous disciplinary record can be used to attack the
officer’s credibility.

PORTABLE BREATH TEST INADMISSIBLE – Most states prohibit the use of portable breath testing results as
evidence at trial in a DUI case.

PORTABLE BREATH TEST IMPROPERLY ADMINISTERED – The manufacturers of portable breath testing devices
require a minimum of two tests to consider the results evidential in nature.

FAILURE TO CONDUCT OBSERVATION PERIOD – Most states require that a driver be observed continuously for a
minimum period, such as twenty minutes, prior to a breath test in order for the results to be considered admissible
and valid.

EXPERT WITNESSES – Expert witnesses are available to review the validity of breath tests, blood tests and field
sobriety tests.

MEDICAL AND HEALTH PROBLEMS – Medical problems with legs, arms, neck, back and eyes can affect the results
of field sobriety tests. Further, other medical conditions can also affect the validity of breath test results.

BAD WEATHER – Weather reports establishing high winds, low visibility, and other conditions are available to
explain poor driving or poor balance.

LACK OF PROBABLE CAUSE TO ARREST – A police officer must have specific and articulable facts to support any
arrest for DUI, or the suspension will be reversed and the evidence suppressed at trial.

ILLEGAL SEARCH – The police are prohibited from searching a person or the automobile for a minor traffic offense,
and may not search a car without a driver’s consent or probable cause. Any evidence illegally obtained is not
admissible in court. PRIOR

INCONSISTENT STATEMENTS BY POLICE OFFICERS – Any statement made by a police officer, verbally, in police
reports, or at previous court proceedings may be used to attack that officer’s credibility.

POST-DRIVING ABSORPTION OF ALCOHOL – The prosecutor must prove the blood or breath alcohol at the time of
driving. Recent consumption of alcohol just prior to driving will cause the test results to be higher than what the true
level was when the person was operating the automobile.

INTERFERING SUBSTANCES – Many items contain forms of alcohol, which may cause false results, such as asthma
spray, cough drops, paints, fingernail polish. These items can cause the breath results to be invalid.

BREATH MACHINE NOT PROPERLY OPERATED – The manufacturers of breath testing devices have specified
protocols, which must be followed for a breath result to be valid. Failure to follow these requirements will result in
improper readings.

FAILURES TO PRODUCE DISPATCH TAPES – Most stops of vehicles are recorded on dispatch tapes, as well as
recording police communications regarding an arrest of an individual. Failure to preserve such tapes upon request
can cause all evidence, which could have been recorded to be suppressed.

MISLEADING STATEMENTS BY POLICE OFFICERS – Any misleading statement by the police regarding the
consequences of taking (or refusing) a blood, breath, or urine test will cause the suspension to be reversed and
removed from the driver’s record.

STATUTES OF LIMITATIONS – A misdemeanor charge of DUI must be filed within a certain period of time (which
varies between states) of the date of offense, or the charges will be dismissed outright.

PRIVATE PROPERTY – A person who has not driven the car on a public highway cannot be suspended for drunk
driving.

FAILURE TO DISCLOSE EXPERTS – The failure of the prosecutor to disclose the state’s expert(s) will cause those
witnesses to be barred from testifying against the defendant.

LACTATE RINGERS – When hospital staff use lactate ringers during the treatment of a patient, the hospital blood
serum results will report falsely elevated, and therefore invalid, readings.

FAILURE TO RECORD CERTIFICATION TESTS – the failure to include the value of the simulator solution used to test
breath machines will cause the breath test results to be inadmissible in court against the driver.

FORCED BLOOD DRAWS – In some states, the police may not take a blood test against the driver’s consent where
there has not been an injury involved, or the result is inadmissible.

(disclaimer) State laws may vary. Please consult an attorney for legal advice on actual application in your state.
source: getduilawyer.com
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