FIGHTING A DUI – BREATHALYZER AND BLOOD TESTS

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Challenging a breath or blood test

When fighting a DUI, one of the most common questions from those facing DUI charges is “What do I do if I failed a breathalyzer or blood/urine test?” Many people consider breath and blood/urine test results to be beyond challenge, but this is not the case.

Breath and Blood Test Inaccuracies

Some issues that may render a breath alcohol concentration test inadmissible:

• the BAC operator is not certified, or the certification expired;
• failure to conduct instrument checks with proscribed time limits;
• failure to maintain calibration check solutions in a proper manner;
• using a calibration solution in excess of three months after the date of first use;
• failure to conduct a radio frequency check in the proper manner; and
• failure to maintain the result of instrument checks, controls, certifications, calibrations checks, and records of service and repairs in accordance with the Ohio Administrative Code.

Blood and urine tests are also not infallible. Some common issues are:

• an unqualified person collecting the sample;
• unsterile conditions during the sample collection;
• improper collection of the sample;
• lack of witness to the specimen collection to allow authentication;
• improper storage and handling of the sample; and
• poor or malfunctioning testing machinery.

While not completely dispositive, the presence of any factor listed above could lead to suppression of the test or an offer of a reduced charge. The prosecutor is required to establish that law enforcement substantially complied with Ohio Administrative Rules Governing alcohol testing.

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