Discarding Evidence In DUI / OVI Breath-Test Cases

A police officer discarded evidence that a DUI suspect blew under the ‘legal limit’. According to WCNC, the suspect was involved in a one-car accident and pulled her vehicle into a gas station parking lot. An officer went to the gas station and had the suspect perform field sobriety tests. The officer took the suspect into custody and administered multiple breath tests. The officer obtained two evidence tickets with results from the breath tests. The officer threw-out the evidence ticket with a result ‘under the limit’, kept the evidence ticket with a result ‘over the limit’, and charged the suspect with DUI (called ‘OVI’ in Ohio).

Ohio’s Breath-Testing Regulations
In Ohio, for a breath test to be used as evidence in court, the prosecution must show the test was done in substantial compliance with the Ohio Administrative Code regulations. Ohio Administrative Code section 3701-53-02(E) states, “The results of subject tests shall be retained in a manner prescribed by the director of health and shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code”.  Rule 3701-53-01 provides, “The results of the tests shall be retained for not less than three years.”

In a case like this one, the officer’s conduct would be a violation of the breath-testing regulations. When an officer fails to maintain a test result, the prosecution would be unable to show the breath tests substantially complied with the regulations. Therefore, the breath test should not be admissible.

Litigating Non-Compliance With Breath-Testing Regulations
When a defense lawyer learns that law enforcement did not comply with the regulations, the lawyer files a motion to suppress the breath test under Rule 12 of the Ohio Rules of Criminal Procedure. Pursuant to Rule 47, the motion must state with particularity the grounds for suppressing the evidence.

After the motion to suppress is filed, the judge must hold a hearing on the motion. At the hearing, the prosecution has the burden of proving the breath test substantially complies with the Ohio Administrative Code regulations. To do that, the prosecution typically introduces the testimony of the officer who administered the breath test, as well as the testimony of the officer(s) who maintained the breath-testing machine. The prosecution also introduces supporting documentation regarding the machine.

The Importance Of Maintaining Records
Maintaining evidence tickets for three years is not the only rule in the Ohio Administrative Code for breath tests. There are approximately 25 requirements. A law enforcement agency’s failure to substantially comply with any of those requirements may lead to the breath test being suppressed.

For a defense lawyer to evaluate the law enforcement agency’s compliance with the regulations, the agency must keep records. That is why the regulations require law enforcement to maintain records for three years.

While a violation of the record retention rule may seem like a ‘technical’ infraction, it is actually a significant violation. By failing to maintain records, law enforcement deprives defendants of a meaningful opportunity to determine whether the rules were followed. Destroying evidence favorable to the defendant is also a violation of the defendant’s right to due process of law. The incident in this story demonstrates the importance of hiring OVI defense lawyers who understand the intricacies of litigating OVI breath-test cases.