There is a big difference between a standard breathalyzer and a portable breath test—also called a PBT test or portable breathalyzer.
Although both tests measure a person’s blood-alcohol level, the results from the PBT test are not admissible in court.
The results from a standard breathalyzer may be admissible in court if the prosecutor satisfies the legal requirements.
Successfully defending a charge of operating a vehicle while intoxicated (OVI) often starts with challenging the validity of the prosecutor’s evidence.
Having an OVI defense lawyer who knows the law and understands how to challenge breathalyzer results successfully could mean the difference between a conviction and an opportunity to walk away without penalties.
In the Dayton area, Gounaris Abboud, LPA, is the team you can trust to help protect your rights and your future.
Admissibility of Breathalyzer Results in Ohio
The Ohio Revised Code § 4511.19 is the State’s OVI statute.
The statute says a person cannot drive a motor vehicle under the influence of alcohol.
Notice that this law states that you must be experiencing the effects of alcohol and actually be impaired.
However, the “per se” OVI rule states that if you have a .08% blood-alcohol concentration (BAC) you are breaking the law—whether you are actually impaired by the alcohol.
More specifically, the .08% BAC means that the ethanol in your system meets or exceeds .08 grams in 100 milliliters of blood or .08 grams in 210 liters of breath.
It is illegal to drive with that much alcohol in your system, regardless of its impact on your ability to drive.
Ohio’s OVI law allows for the analysis of breath, urine, whole blood, blood serum, or plasma to determine if the person is OVI per se.
Admissibility of Breath Tests in Court
A prosecutor cannot simply discuss the breathalyzer test in court without meeting the legal requirements to introduce the results into evidence.
Unlike in television shows or movies where the characters freely talk about evidence, Ohio law imposes strict rules that the parties must meet before the judge or jury can hear the evidence.
In court, the judge calls that process “laying a foundation.”
Foundation for admissibility
The prosecutor must lay the proper foundation before the judge allows the breathalyzer results into evidence.
The OVI law explicitly states that a breathalyzer test taken within three hours may be admitted into evidence at trial to prove the accused’s blood-alcohol level.
Any breath sample taken more than three hours after the arrest is not admissible.
Ohio’s OVI law states that the arresting police officer must ask the person under arrest for OVI to take a chemical test.
Next, the officer must warn the person about the consequences of refusing a breathalyzer test.
Finally, the breath test must meet the methods approved by the Ohio Director of Health.
Requirements for test admissibility
The director of health publishes the requirements for breathalyzer tests. The requirements include:
- Setting guidelines for testing methods;
- Establishing qualifications of individuals authorized to administer the tests; and
- Certifying each person allowed to administer the breathalyzer.
The director also has the authority to revoke any certification issued.
Before the prosecution can offer the breathalyzer test results in evidence, the prosecutor has to show that the breathalyzer machine worked adequately and that a certified breath test operator administered the test.
Part of this process is proving that the testing officer followed the checklists and recorded the data on the right forms.
This process also includes testing the solution in the breathalyzer every seven days.
What Can Happen If the Police Do Not Follow the Breathalyzer Rules?
The judge can exclude the breathalyzer test results if the prosecutor fails to lay the proper foundation to admit the test results in evidence.
The judge can also exclude the results if the machine was not in working order or the officer who gave the test was not certified.
Without the test results in evidence, you stand a better chance of winning the case.
Are PBT Results Admissible in Ohio Courts?
A police officer who pulls you over can administer a portable breath test at the scene.
The officer might be able to use that test result to help determine whether probable cause exists to arrest you for OVI. But that’s as far as this evidence can go.
Courts in Ohio do not allow PBT evidence at trial. The officer cannot testify to the result or even state that the officer gave you the test.
And unlike the refusal of a proper breathalyzer, the refusal to take a PBT cannot be used against you in court.
The reason these tests are inadmissible is that courts have determined that PBT machines are highly inaccurate.
Unlike breathalyzer machines, there are no reliable methods for testing a PBT’s accuracy.
Additionally, there are no testing or certification requirements for a PBT device, unlike a breathalyzer test installed in a police station.
Fight the Breathalyzer Results In Your Case with Experienced OVI Defense Lawyers
The OVI defense attorneys with Gounaris Abboud, LPA, have tremendous experience fighting OVI cases successfully by challenging the breath test results.
Their knowledge, skill, and experience can help you when you need it most.
We will listen to your needs and help you achieve a successful outcome.