What Happens If You Fail Your Breathalyzer Test

You probably realize that you need the help of a well-qualified and experienced defense lawyer if you have a DUI (also called OVI) arrest in Ohio.

Your legal trouble began as soon the police pulled you over.

Now, you have a court date, and the police suspended your license administratively because of a breathalyzer failure.

You might be in more significant trouble if you are already on probation and fail a breath test.

Where should you go for legal advice? Gounaris Abboud, LPA has the OVI defense attorneys you can trust in Ohio.

With several decades of experience fighting to protect the rights of people accused of committing a crime, you could rely on Gounaris Abboud, LPA to give you the best chance to beat the wrap or face reduced charges.

Contact us today to get started!

Can You Fail a Breathalyzer 12 hours After Drinking?

Ohio’s legal limit is 0.08%. The average alcoholic beverage contains 1.5 ounces of liquor, 12 ounces of beer, or five ounces of wine.

Humans metabolize only one drink per hour. Therefore, it takes a 200-pound man four drinks in one hour to reach the legal limit.

However, it takes a 160-pound woman only three drinks in that period to get to a 0.10%. 

Your body metabolizes alcohol at a rate of about 0.015% per hour once you stop drinking.

Until then, your blood-alcohol content will go up, even for the first hour or so after you had your last drink.

Based on those statistics, a person with a BAC of 0.08% needs less than six hours to have no measurable amount of alcohol in their system.

However, it is theoretically possible to fail a breathalyzer even though you stopped drinking 12 hours before.

Factors like a person’s tolerance for alcohol and weight will play a significant role in registering a breathalyzer failure even after not having a drink for 12 hours.

Remember that you do not have to be drunk under Ohio law to get a DUI charge. 

The timing of a breathalyzer test is essential. A court cannot consider a chemical test submitted after a three-hour window.

The window starts when the police record the infraction.

However, Ohio law requires the police to give the necessary warnings, and the person under arrest must consent to take a chemical test within two hours.

The police will automatically note the person refused if the person does not agree within two hours. 

What Happens If You Fail a Breathalyzer Test in Ohio?

You have a choice about whether you should take a breathalyzer test in Ohio.

Ohio law says that you agree to submit to a breathalyzer or other chemical test if a police officer has probable cause to believe you are drunk driving.

Thus, state law implies that you consented to take the test because you drove on a public street in Ohio. 

If you refuse the breathalyzer, the state will automatically suspend your license under Ohio’s implied consent law. The suspension could last up to one year.

The court could tack on another license suspension period if you lose your case in court as well.

It’s a hard choice to make. That’s why some people arrested for OVI agree to take the breathalyzer test. Others take it because they believe they can pass the test.

They are often mistaken, unfortunately.

If You Fail a Breathalyzer, Do You Have to Surrender Your License?

If you fail the breathalyzer test, the police officer who gave you the test must physically take your license from you if you have it in your possession.

The officer must forward your license to the Ohio Bureau of Motor Vehicles. If you do not have it on you, you must surrender it to the law enforcement agency within 24 hours.

The officer will send your license to the Bureau of Motor Vehicles at that time. 

The officer who seizes your license must advise you that the law automatically suspends your driver’s license.

The automatic suspension will last at least until your first court appearance. Your initial court appearance will be in five days or less.

The officer must also tell you that you have a right to appeal the automatic suspension at your first appearance in court.

However, Ohio law gives you up to 30 days to appeal.  

Ohio law does not stay your suspension if you file an appeal. Moreover, an appeal only allows you to contest some facts regarding the breathalyzer test. It is not a trial on the merits of the case.

What Happens If You Fail A Breathalyzer While on Probation?

Probation is an essential tool in the Ohio criminal justice system. Probation is a court order.

Therefore you must take all of the conditions seriously. You could wind up in jail if you violate the terms of probation. 

Your probation officer could start probation revocation proceedings against you for a breathalyzer failure. This could arise in two circumstances.

The first is if you are on probation and failed a breathalyzer after a DUI arrest.

The second is failing a random breath test after the court ordered you to abstain from alcohol consumption. 

In either circumstance, you face a significant legal challenge. Having a tough and skilled Ohio DUI attorney could help you stay out of jail.

Trust Gounaris Abboud, LPA to Fight for Your Rights

We are award-winning attorneys who understand the trouble you face. Remember that it’s only temporary.

We will work with you to find the best solution for your case as quickly and efficiently as possible.

The awards we have won, such as SuperLawyers and National Top 100 Trial attorneys, symbolize the care and effort we put into each case.

Contact us today at 937-222-1515 for help with your DUI case. When you do, you’ll learn why we consistently have an AVVO rating of 10.0.

Author Photo

Nicholas Gounaris

Nick Gounaris attended Miami University and received a Bachelor of Arts degree and then went on to attend
University of Dayton School of Law where he received his Juris Doctorate. In 2011, Mr. Gounaris was awarded a 10.0 “Superb” rating by Avvo, which is an attorney rating website recognized around the nation. He provides clients of the firm with competent legal representation and focuses his law practice in the areas of DUI DefenseCriminal Defense, Family Law Issues, Federal Criminal Law and Personal Injury cases.

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