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.

Fight your DUI charge

Junk Science and Challenging the Accuracy of the Testing Machine

In Ohio, it has been argued that junk science is used to determine guilt or innocence in DUI/OVI cases. The only answer to this argument that the prosecutors and the courts (and in DUI/OVI, the prosecutors and the courts are all the time merging into the same entity) have come up with is that you are not allowed to make the argument. Sound outrageous? You don’t know the half of it. The case on this is State v. Vega (1984), 12 Ohio App.3d 185 and, fittingly, it came out in 1984.

In Vega, the defendant attempted to introduce the testimony of an expert witness who would testify as to the general reliability of intoxilyzers as valid, reliable breath testing machines. His expert witness was Dr. Walter J. Frajola. But the prosecutor filed a Motion in Liminie (a motion to exclude this evidence) so that the jury could not hear such testimony from this medical doctor. The prosecutor was concerned that the jury might hear evidence that the breath testing machines used in Ohio were unreliable and come to the wrong conclusion as to the guilt or innocence of the defendant.

The Ohio Supreme Court has ruled that Ohio Revised Code 4511.19 is a strict liability statute. Defiance v. Kretz (1991) Ohio St.3d 1 at 3 citing State v. Cleary (1986), 22 Ohio St.3d 198 at 199. In Ohio Revised Code Section 4511.191(A)(3), the General Assembly defined an alcohol limit at which a person can no longer drive without posing a substantial danger to himself and others. State v. Tanner (1984), 15 Ohio St.3d 1 at 6.
Read more