Short Answer
Yes, an Ohio breath, blood or urine result can be challenged. The state has to show the sample was collected and handled the way the rules require, including the three hour limit on breath testing, the twenty minute observation period, a certified operator, a properly maintained instrument, and the collection and storage rules in Ohio Administrative Code 3701-53. When the agency cannot document compliance, a motion to suppress asks the judge to keep the result out of your trial. Bring the test ticket and your citation in this week, because the video and the machine logs behind that number are on a deletion clock.
Ohio Breath Machines and What They Measure
Breath testing in Ohio runs on two instruments in common use, the Intoxilyzer 8000 and the DataMaster. Neither one measures the alcohol in your blood. Both measure alcohol in a sample of your breath and convert it using a fixed ratio that assumes your body behaves like an average body. Breathing pattern, body temperature and lung capacity all move that number, and the machine knows nothing about you. A small error costs more the lower the threshold, which is why a commercial driver held to .04 has as much riding on the calibration records as anybody who blew a .17.
Mouth alcohol and acid reflux
The instrument is supposed to sample deep lung air. Alcohol sitting in your mouth or coming up from your stomach reads much higher than what is actually in your blood. If you have a GERD diagnosis, tell us at the first meeting and bring the records.
Radio frequency interference
These machines sit in booking rooms full of portable radios, cell phones, printers and computer equipment. They are built to detect radio frequency interference and abort the test when they find it, and the instrument log records every time that happens. We ask for those logs. A pattern of aborts and invalid samples in one department’s booking room is worth knowing about early.
Find the test ticket
The printout shows your result, the time it was taken and the serial number of the instrument. Photograph it before it goes through the wash.
Write down the times you remember
When you were stopped, when you reached the station, and whether anyone was actually watching you before you blew.
Stop talking about what you drank
Keep it off the recorded jail phone. An estimate you give tonight becomes an admission at trial.
Three Hours From the Time You Drove
Ohio requires the breath sample to be collected within three hours of the time you operated the vehicle. The clock runs from your driving, not from the arrest and not from when the officer started his paperwork.
Three hours sounds like plenty until you look at a real night. An arrest on West 6th Street or in the Flats East Bank can involve waiting for a tow truck, a ride to a district station, a booking room where the machine is already in use, and a shift change in the middle of it. The time stamps on the cruiser video, the dispatch log, the arrest report and the test ticket rarely line up perfectly, and those gaps are worth pulling apart.
Twenty Minutes of Observation Before a Breath Test
Before a breath test, the operator has to watch you for twenty minutes and confirm that you did not eat, drink, smoke, vomit or put anything in your mouth. Watching means watching, with eyes on you for the whole twenty minutes and not on a report in the next room.
This is one of the defenses that actually move an OVI case, because it can be checked against a clock and a camera. Booking room video, the times written on the arrest report, radio traffic and the operator’s own testimony either line up or they do not. If you burped or vomited inside that window and the operator went ahead anyway, the result is open to challenge.
Test results get challenged all the time
Records get lost, permits lapse, and machines get run by people in a hurry.
Operator Permits, Calibration and Maintenance Records
The person who ran your test needs a valid permit from the Ohio Department of Health for that specific instrument, and the machine itself needs a documented history. Calibration checks happen on a schedule using a solution that has its own batch number, certificate and expiration date. Records get missed. Officers transfer out, permits lapse, and an instrument that threw errors all week sometimes stays in service anyway.
None of that comes to you on its own. It has to be demanded in discovery and subpoenaed, and here is what we go after.
| Record | Who holds it | What it can show |
|---|---|---|
| Instrument check and calibration logs | Arresting agency | Whether the machine passed its checks before and after your test |
| Operator permit and access card | Ohio Department of Health | Whether the person who tested you was certified on that instrument that day |
| Maintenance and repair history | Agency and service vendor | Out of service periods, replaced parts, repeat failures |
| Subject test log | Arresting agency | Aborted tests, invalid samples, interference detections |
| Solution certificate and batch records | Arresting agency | Expired or improperly stored calibration solution |
| Booking room and cruiser video | Arresting agency | The observation period, your condition, what was said to you |
Records kept under Ohio Administrative Code 3701-53 and used in prosecutions under R.C. 4511.19.
Blood Draws, Urine Samples and Chain of Custody
When the case involves drugs, prescription medication or marijuana, or when a breath sample cannot be obtained, the state turns to blood or urine. Collection and handling of those samples is governed by Ohio Administrative Code 3701-53, and the rules are specific about who may draw blood, how the site is cleaned, what tube and preservative are used, how the container is sealed and labeled, and how the sample is stored.
Blood has to be drawn by a physician, registered nurse or other qualified person, into a tube containing an anticoagulant and a preservative, and the skin cannot be cleaned with an alcohol swab. Samples have to be refrigerated whenever they are not in transit or under examination, and testing has to be completed within the period the rules allow. Urine collection carries its own requirements for the container, the preservative and refrigeration. A sample left unrefrigerated over a long weekend is a real issue.
Video and machine logs do not last forever. Agencies overwrite booking room recordings on a cycle, so the demand for records has to go out in the first weeks of your case.
Chain of custody is the paper trail from your arm to the analyst’s bench, and every hand the sample passes through has to be documented. Hospital draws add a layer. After a crash on I-77 or I-480 your blood may have been taken for treatment rather than for the police, in a hospital tube with no preservative, and that paperwork looks nothing like a police kit. A case built on medication or cannabis carries a separate problem, which is whether a number in the report says anything about how you were driving. We take that up under prescription and drug OVIs.
Motions to Suppress in Cleveland Municipal Court
A motion to suppress is a written challenge filed before trial that asks the judge to keep evidence out. In Cleveland Municipal Court, and in the suburban courts in Lakewood, Parma, Bedford and Shaker Heights, the motion has a filing deadline measured from your arraignment, and it has to be specific. A motion that names the rule the agency violated forces the prosecutor to prove compliance with it. It usually challenges the stop that put you in the booking room too, since a bad stop takes the test with it.
Demand discovery immediately
The written request goes out as soon as we are retained, along with a preservation letter for video that would otherwise be recorded over.
Subpoena the agency records
Calibration logs, permits, maintenance history and solution certificates come from the department and from the Ohio Department of Health, not from the prosecutor’s file.
File a specific motion
Each ground is stated separately: the stop, the arrest, the roadside tests, the observation period, the instrument, the sample handling.
Try the hearing
The officer and often the test operator testify. Their answers are compared against the video, the logs and their own reports.
Use the ruling
A favorable ruling can end the case or change what the prosecutor is willing to offer. An unfavorable one still gives us sworn testimony for trial.
Larry W. Zukerman has been cross examining breath test operators in these courtrooms since well before the Intoxilyzer 8000 went into service in Ohio, and the questions have not gotten any easier for the state to answer. A suppressed test takes away the number the prosecutor was counting on and changes every conversation after that, including whatever he is willing to do on a reduction. Bring your paperwork to our office on Prospect Avenue and we will tell you what the records are likely to show.
If you turned the test down at the station, a different set of rules applies to you and they start with the refusal suspension.
Common Questions
Can a breath test result be thrown out in Ohio?
Yes, and the grounds are usually procedural. A sample taken more than three hours after you drove, an observation period nobody actually kept, an operator with no valid permit, missing instrument records: any of those can support suppression. The challenge is made by written motion before trial and argued at a hearing.
How accurate are breathalyzers?
Accurate enough that Ohio courts admit the result, and not so accurate that the number belongs on the wall as a fact. A breath machine estimates blood alcohol from a breath sample using a fixed ratio, and mouth alcohol, breathing pattern and a lapsed calibration check all move it. The attack is usually on how the test was run rather than on the chemistry.
Does acid reflux affect a breath test?
You will need the diagnosis on paper before anyone will do much with it. Gastroesophageal reflux disease can carry alcohol up from your stomach into your mouth and throat, and the instrument reads that as deep lung air. Dentures, oral piercings and a recent burp do the same thing.
How soon should I hire a lawyer to get the records?
Right away. Booking room and cruiser video gets recorded over on a fixed cycle, and machine logs are far easier to pull while the case is new. A preservation letter and a discovery demand in the first weeks protect evidence that may not exist in three months.
How much does a DUI lawyer cost in Cleveland?
It depends on whether this is a first offense, whether there is a test result to fight, and whether the case goes to trial. We quote a flat fee once we know those things and we give you the number at the first meeting. Ask what the fee covers before you hire anybody.
