Evidential breath testing in Ohio is governed by the Ohio Administrative Code and the Ohio Revised Code. The OVI statute, R.C. 4511.19(D)(1), sets forth the requirements that evidential breath tests are admissible when analyzed by individuals holding valid permits issued pursuant to R.C. 3401.143, and qualified in accordance with O.A.C. 3701-53-07(C) - (F).
The Ohio Administrative Code contemplates two types, or ranks, of people who are qualified to administer an evidential breath test: Operators and Senior Operators. "Operators" are authorized to conduct breath tests, whereas, "Senior Operators" is capable of conducting breath tests, caring for the machine and its maintenance and performing required checks. The permit holder must submit satisfactory completion of an in-service machine-specific course including a comprehensive review of self-study materials provided by the director of health. In practice, most police departments require every officer to be certified as a "senior" operator.
The required calibrations of the various evidential breath testing machines can only be conducted by a senior operator. It is incumbent upon your OVI attorney to check the paperwork associated with your breath test to determine if the calibration was done by a senior operator holding a valid certification from the director of health. If the person conducting the test is invalid the test may be suppressed. See State v. DiMaggio, 1987 WL 10430 (Ohio Ct. App. 1st Dist. Hamilton County 1987), State v. Bremer, No. C-850819 (1st Dist. Ct. App. Hamilton, 6-4-86, State v. Arms, 1985 WL 7379 (Ohio Ct. App. 3d Dist. Union County 1985), State v. Adams, 1995 WL 114166 (Ohio Ct. App. 4th Dist. Pickaway County 1995, opinion supplemented, 1995 WL 614186 (Ohio Ct. App. 4th Dist. Pickaway County 1995), and State v. Fistler, 2004-Ohio-7067, (Ohio Ct. App. 7th Dist. Belmont County 2004). Citation found in Ohio Driving Under the Influence Law, 2009-2010 ed., J. Weiler at pp. 175-176.
Ohio OVI lawyer Charles M. Rowland II has been defending the accused drunk driver for over fifteen (15) years. If you find yourself facing Ohio's harsh drunk driving laws, please CONTACT DUI lawyer Charles M. Rowland II immediately at (937)318-1DUI [318-1384], 1-888-ROWLAND [888-769-5263] or stay one step ahead by following www.Facebook.daytondui or www.Twitter.com/daytondui. You can also follow the RSS feed of this blog by subscribing on the main page. DaytonDUI also offers a free text service where you can receive updates sent directly to your mobile device.
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