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The Breath Test

Machines can make mistakes. It happens all the time. However, in the context of an OVI the stakes are much higher. Under Ohio law, the requirements if you’re twenty-one or older: 0.08 percent, a commercial driver: 0.04 percent, and under twenty-one: 0.02 percent. The measure of your BAC level is how the police determine whether one is intoxicated or not. Whether one is violating the law or not. In theory in order to make an accurate determination the breathalyzer product should be functioning properly. ┬áThe issue presented is the way that the machine can create an inaccuracy which can affect any individual reading and can then lead to a wrongful conviction.

Calibration itself seems to come up often. During this past summer, watching an OVI trial, I noticed that the defense focused mainly on this issue. Asking questions such as who calibrated the machine? When was the last time the machine was calibrated? Was the calibration done properly? Another common source of inaccuracy is the deviations the instrument will provide. Subtle changes of weather itself can lead to inconsistent results. To be wrongfully convicted of a OVI due to an inaccuracy by the machine itself presents a troubling problem. The fact that your breath itself can change the outcome of the results, needs to be carefully considered.

According to Ohio Revised Section 4511.19 the elements of the law itself are composed of these hard and fast numbers. However, there should to be more reliable technology if the merits of your crime is merely tied to the number 0.08 percent for a twenty-one year old. It is indeed a fact that drunk driving in of itself is a serious offense and the effects are significant to public safety but what happens when the back to back breath tests fluctuates from a .078 to .081 percent? In order for the defendant to get a fair trial, the technology itself needs to become considerably more accurate or the law itself needs to change. The law shouldn’t solely rely specifically to the numbers as the elements themselves but rather use the numbers simply as evidence to connect the defendant to the crime. Conclusive presumptions are not only forbidden in a criminal case but due process necessities the right for a defendant to challenge the machines’ results. This challenge is reasonably justified especially if ┬ámachine doesn’t get the numbers right in the first place.

-Vishal Noticewala