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How To Discredit A PBT In A Cincinnati DUI Case

Driving Under the Influence & Operating a Vehicle Under the Influence

Under Ohio law, law enforcement officers primarily use the term “OVI” (operating a vehicle under the influence) when describing what most states deem a “DUI,” (Driving Under the Influence).

If you’ve been arrested for an OVI/DUI in Ohio, you need an attorney that will fight for your rights through every stage of your case.  Having a zealous attorney on your side can help you navigate the legal process.

Being charged with drunk driving can completely turn your life upside down.  If convicted, you can lose your license, be forced to pay significant fines, be subject to higher insurance premiums, or even face jail time.  An OVI/DUI arrest often presents a laundry list of legal complications. Always remember that, even if you’ve been arrested, you are presumed innocent until proven guilty in a court of law.

Breath Tests

Many, Ohio OVI/DUI charges are based many on your blood alcohol concentration (BAC).  One of the principal ways of testing your BAC is through a breath testing device, such as a portable breathalyzer test device (PBT).  A PBT is a handheld device that has a tube into which suspected drunk drivers submit breath samples at the request of a detaining officer.

You May Face Ohio OVI/DUI Charges If You Are Caught:

  • Driving with a BAC in excess of 08%
  • Driving a commercial vehicle with a BAC in excess of 04%
  • Driving, under the age of 21, with a BAC in excess of 02%;

Understanding The Differences Between PBT devices And Other Breath Tests:

Not to be confused with its more-precise relative — the “Breathalyzer” — PBT devices are used merely to help officers establish probable cause.  Unlike PBT devices, Breathalyzers are generally subject to strict calibration and false-positive standards and are thus widely considered to be much more accurate.

Hence, the difference between the two tests can best be described as follows:  PBT devices are helpful tools officers use to establish probable cause for arrest; while Breathalyzers are more accurate stationary instruments that can be used to establish substantive evidence against a criminal defendant charged with driving under the influence.  Understanding this dichotomy is imperative to any successful OVI/DUI defense strategy.

What Happens When I Refuse To Provide A Breath Sample?

Under Ohio law, you have implicitly consented to take a blood, breath, or urine test when arrested for an OVI/DUI at the time you receive your license.

This mandate comes from Ohio’s “implied consent law” (Ohio Revised Code § 4511.191) — which, in essence, states that if you are lawfully arrested by an officer who can establish probable cause for believing that you are operating your vehicle under the influence, then you (at least impliedly) consent to take a BAC test.

The consequences for refusing a test after you are arrested are as follows:  one-year driver’s license suspension for the first offense; two-year driver’s license suspension for the second offense; and three-year driver’s license suspension for the third offense.

Strategies For Fighting Breath Test Results

There are several strategies top Cincinnati DUI lawyers use to fight cases for clients if you are facing OVI/DUI charges in Ohio, you need an attorney that is intimately familiar with Ohio’s complex OVI/DUI laws.

Some (but not all) of the most effective defense strategies for fighting breath test results include:

The Mouth Alcohol Defense

Cincinnati DUI lawyers know that one of the most well-recognized defenses to OVI/DUI charges in Ohio is the so-called “mouth alcohol defense.”  BAC tests are reputedly designed to test deep lung air, not mouth alcohol.  Many experts, however, believe that mouth alcohol is still an issue to be dealt with.

This defense strategy basically points out that many of Ohio’s breath testing devices can sometimes be fooled by negligible amounts of alcohol that might remain in one’s mouth — such as mouthwash or breath spray.  Similarly, medical conditions such as acid reflux can cause dramatically higher BAC readings based off of mouth alcohol.

The Low Carb Defense

Cincinnati DUI lawyers know that low carb dieters such as people with diabetes and people following the ketogenic diet may be susceptible to certain body chemistry factors that can throw off BAC tests.

People who refrain from consuming carbs sometimes obtain a physical state called “ketosis.”  In essence, ketosis allows one’s body to switch its principal fuel supply from glucose to ketones — thus allowing the burning of fat to be the body’s principal energy source.  This can cause the body to produce isopropyl alcohol.  Most Ohio BAC testing machines cannot distinguish between isopropyl alcohol from ethanol, which is the substance that most breath tests look for.

The Rising BAC Defense

Cincinnati DUI lawyers know that timing is everything when you are charged with an OVI/DUI.  Sometimes, an OVI/DUI suspect initially appears to be under the legal limit, and then later, after taking a stationary Breathalyzer back at the police station, that same suspect has a BAC much higher than he did at the time of his arrest.

The explanation for this phenomenon is simple:  it takes time for alcohol to be absorbed fully.  Under Ohio law, it is not a crime to have a BAC above .08 at the police station — what matters is your BAC at the time of your arrest.

The Improper Calibration Defense

Cincinnati DUI lawyers know that Ohio law requires breath-testing instruments to be tested for accuracy once every seven days by someone with a valid senior operator permit issued by the Ohio Director of Health. If the device used in your arrest was not properly tested or otherwise calibrated, the results may be thrown out completely in a court of law.