Records Keeping Requirements for Breath Testing Devices

When the police take you back to the station after arresting you for DUI (now called OVI in Ohio), you will be asked to take a test to determine the amount of alcohol in your system. This test comes in three forms, blood, urine, or breath, and you don’t have a choice as to which one they ask you to take.

The most common test is a breath test. Ohio Revised Code 4511.19(D)(1) provides that the analysis of bodily substances must be conducted in accordance with methods approved by the Ohio Director of Health as codified in the Ohio Administrative Code.

Ohio Administrative Code Section 3701-53-04(A)(1) requires that breath testing machines be calibrated once every seven days. The machines are calibrated by pumping a mixture of air and ethyl alcohol from a bottle through the machine. If the results are within .005 of the target value listed on the bottle, then the machine passes the test. If the results are more than .005 off, then the machine is tested again using a different bottle. If it then reads within .005 then the machine passes. But if it reads over .005 again, then the machine must be serviced before it can be used again.

The police are required to keep calibration logs containing all calibration tests for the last three years at the testing site. Ohio Administrative Code Section 3701-53-01(A). One police agency failing to do this recently was the Genoa Township Police Department. Officer Craig Jones, a certified senior operator of the testing device testified in court that when the machine failed the test, the results of those calibrations were not recorded in the logs.

The Fifth District Court of Appeals held that this was a violation of Ohio Administrative Code Section 3701-53-01(A) since the code section required that all calibration results, successful and unsuccessful, must be recorded and kept for three years. The Court of Appeals reversed the trial court’s holding that the results of the test were admissible and remanded the matter back to the trial court for further proceedings.

The case on this is State v. Shokery, 2007 Ohio App. LEXIS 3357.

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