Breath & Blood Tests

Breath & Blood Tests in Ohio

Experienced & Skilled Legal Counsel by Our Akron OVI Lawyers

If you were recently arrested for an OVI in Ohio and failed a breath or blood test, you must obtain experienced legal assistance from a qualified DUI attorney who has had successful results in OVI cases. At DiCaudo, Pitchford & Yoder, we are prepared to protect the rights, reputations, and freedom of all our clients. With more than three decades of experience, our Akron breath & blood test attorneys have a thorough understanding of state drunk driving laws to help you navigate the complexities of your case.

Ohio Implied Consent Law – O.R.C. 4511.191

Ohio’s “Implied Consent” law (O.R.C. 4511.191) provides in part that “[a]ny person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance or combination content of the person’s whole blood, blood serum or plasma, breath, or urine…”

This means that any person who operates a motor vehicle within the state of Ohio is automatically considered to have given his consent to a chemical test of their blood, blood serum or plasma, breath, or urine to determine its alcohol content if arrested for DUI/OVI. A person suspected of DUI/OVI must submit to a request the chemical tests described by the statute within 2 hours or such failure will be considered a “refusal.”

Failing or refusing a chemical test automatically results in an administrative license suspension. Administrative license suspension can carry with it hefty penalties as reference in the chart below.

Penalties for Refusing Breath & Blood Test in OH

What are the penalties for refusing a breath or blood test in Ohio?

  • First offense – One-year suspension of driver’s license
  • Second offense – Two-year suspension of driver’s license
  • Third offense – Three-year suspension of driver’s license

As soon as you are arrested, you cannot refuse a test without facing the consequences. For any subsequent refusal after the third offense, you will lose your license for five years.

FIRST OFFENSE90 Day License SuspensionOne Year License Suspension
SECOND OFFENSEOne Year License SuspensionTwo Year License Suspension
THIRD OFFENSETwo Year License SuspensionThree Year License Suspension
FOURTH OR GREATERThree Year License SuspensionFive Year License Suspension

Police are required to notify DUI/OVI suspects of the consequences of a refusal to submit to a chemical test. Failure to notify a suspect of these consequences may warrant the suppression of the test results.

Common Causes of Error in Breathalyzers in OH

There are many common sources of error in the use of breathalyzers, devices designed to measure the amount of alcohol in an one’s breath. Homeostatic variables, i.e. the differences in biological makeup of individuals, can have a drastic effect on the results of a breath test.

The computers inside breathalyzers work by multiplying the amount of alcohol in an individual’s breath sample by a factor of 2,100 to arrive at that person’s blood alcohol concentration (“BAC”). The computer is programmed to assume that every tested individual has 2,100 units of alcohol in his or her blood for every one unit of alcohol in his breath, a calculation known as the “partition ratio”.

The use of the partition ration creates a problem, however, as it is only an average of the actual ratios exhibited by the general population which can range as low as 900:1 to as high as 3500:1. For example, assuming a person has an actual BAC of .07%, which is legal in Ohio, if that person has a partition ratio of 1500:1, he or she register a breath test reading of .10%, which is over the legal limit.

The bottom line is that a person can fail a breathalyzer test merely because he or she is not average. Certain court decisions have opened the door to challenges regarding the use and accuracy of breathalyzers in Ohio.

Successfully Challenging Blood-Alcohol Testing In Ohio

The process of blood collection and testing in Ohio is governed by the provisions of Ohio Administrative Code § 3701-53, et seq., and Ohio Revised Code § 4511.19(D)(1). When the results of blood-alcohol tests are challenged in connection with a criminal prosecution for DUI/OVI, the state must show that there was substantial compliance with these provisions before the results will be admissible in court. If the state fails to prove there was substantial compliance, the results of the blood test cannot be used as evidence at trial.

The following are some of the most common reasons blood test results are excluded from evidence are:

  • The blood sample was not collected within the three hour time limit prescribed by O.R.C. § 4511.19(D)(1)(b).
  • The blood sample was not collected using an aqueous solution of a non-volatile antiseptic on the skin, pursuant to O.A.C. § 3701-53-05 (B).
  • The blood sample was collected using alcohol as a skin antiseptic, which is prohibited by O.A.C. § 3701-53-05 (B).
  • The blood sample container was not sealed in a manner that would detect tampering pursuant to O.A.C. § 3701-53-05 (E).
  • The blood sample container was not labeled with the name of the individual from whom the sample was extracted, date and time of collection, and the name or initials of the individual collecting the sample, pursuant to O.A.C. § 3701-53-05 (E) (1), (2) and (3).
  • The blood sample was not kept refrigerated at all times following collection, except for transit or examination, pursuant to O.A.C. § 3701-53-05 (F).
  • The technician that analyzed the blood sample did not have the proper permit required by O.A.C. § 3701-53-09.

These are just a few of the many ways in which the collection and testing of a blood sample can be challenged. A knowledgeable DUI/OVI attorney in Akron, OH will be able to recognize and successfully dispute the procedure or results of blood-alcohol tests.

Request a Free Case Evaluation Today

To avoid or reduce the consequences of your OVI charge, we are prepared to fight tirelessly and aggressively for you. As former prosecutors, our Akron breath & blood test attorneys knows how the prosecution will approach your case, giving you an advantage in the courtroom.

Contact us at 330-762-7477 and schedule a free consultation immediately with our Akron breath & blood test lawyers.


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