The terms DUI, OVI, DWI, – however you spell it, drunk driving can mean big trouble in Ohio. DUI convictions are never expunged from a person's criminal record and can affect everything from insurance rates to job prospects.
With a legal Blood Alcohol Content (BAC) limit of .08, a difference of just .01 can mean the difference between no conviction and – depending on previous convictions and other factors – maximum penalties of up to a year in jail, combined with a lifetime license suspension and a fine of up to $10,000.
Fortunately criminal defense attorneys concentrating in DUI cases can pursue a number of issues when challenging BAC testing, including:
The qualifications and credibility of the administering police officer
Whether the officer followed the correct procedures and regulation in a proper fashion
The quality of maintenance of the equipment used to monitor blood alcohol levels
The possible contamination of breath or blood samples
The appropriate use and accuracy of instruments employed
The last point – “challenging the science,” so to speak, of the BAC testing equipment itself – was the subject of a recent article in the Cleveland Plain Dealer regarding one of Ohio’s most-used breathalyzer machines, the Intoxilyzer 8000.
Despite the fact that it has been approved by both the National Highway Safety Administration and the Ohio Department of Health, the Intoxilyzer has been successfully challenged in a handful of court cases, notes the article. Appellate courts, however, have adhered to a 1984 Ohio Supreme Court decision that severely limits the right of suspects to object to the science of a breath-alcohol tester that has been approved by the Ohio Department of Health. Nevertheless, prosecutors in some jurisdictions have agreed to drop the BAC part of the charges when challenged and, in some instances, have allowed defendants to plead to a lesser charge of reckless operation of their vehicle.
Unless a conflicting appellate decision finds its way to the Ohio Supreme Court, “challenging the science” of the Intoxilyzer 8000 may remain a difficult proposition.