I am not sure which breath test machines they use in Ohio, but I am familiar with the machines in my home state of Washington. In Washington, we use the BAC Verifier Datamaster and there is very specific protocol in place for administering the test.
First, the operator of the machine must get a reading of 0.000. Next, the operator puts a simulator solution with a known alcohol content through the machine and checks to see if the reading matches what the is indicated on the container for the solution. The operator must then clear the chamber and get another reading of 0.000. Finally, the operator can then take a person's breath sample. This procedure is to be repeated one more time for a total of two breath samples.
To my knowledge, there is no set number of times that the machine can give a reading of invalid before the test becomes "illegal." If there were a number of invalid samples, then that would be a good reason to request the maintenance records and certification of that particular machine and challenge its reliability. Invalid samples may be treated as a breath test refusal if the officer believes that you are purposely not blowing hard enough.
As far as numerous invalid samples affecting the reading of a later valid sample, it should not make a difference if the operator clears the chamber and gets a reading of 0.000 before having you blow into the machine. Again, I am speaking from my knowledge of how things work in Washington State, not Ohio.
I do not practice in Ohio. My understanding is that Ohio used either Datamaster or Intoxilyzer machines. I am not trained on the Datamaster but I am trained on the Intoxilyzer. My reading about the Datamaster indicates that it uses the code "INVALID SAMPLE" for the same reason as Intoxilyzers. If you were tested on either of these machines and the result was truly "INVALID SAMPLE" it indicates that mouth alcohol may be interfering with the test result. If that is the case, and it occurs repeatedly, the resulting test may be unreliable.
The number of times they can ask you to blow is a matter of Ohio regulation - you would have to talk to an Ohio specialist to get the answer to that.
You need to consult with an Ohio DUI specialist as soon as possible.
Wayne R. Foote, Esq.
Board Certified OUI Defense Law Specialist
Law Offices of Wayne R. Foote, PA
344 Mt. Hope Ave
Bangor, ME 04401
(207) 990-5858 (fax)
"Injustice anywhere is a threat to justice everywhere." M. L. King, Jr.
DISCLAIMER- THIS IS NOT INTENDED TO AND DOES NOT CONSTITUTE LEGAL ADVICE AND DOES NOT ESTABLISH AN ATTORNEY-CLIENT RELATIONSHIP. CONSULT QUALIFIED LEGAL COUNSEL IN YOUR CITY OR STATE FOR IMMEDIATE LEGAL ADVICE.
Your question is impossible to answer without much more information. You definitely need to speak with an experienced OVI lawyer in your local area. Give Michael Drain or Edward Heffernan a call.
Dan J. Weisenburger
Attorney at Law
Was the result INVALID SAMPLE or INVALID TEST? And which instrument did you blow into? As for the number of times to ask you to blow, there is no magic number. They can ask you to blow until they get the result THEY think is correct. I have seen numerous instances where cops get multiple "invalid sample" results and then mark the suspect down as a refusal. This is simply wrong and demonstrates a complete lack of understanding of the instrument, its' status codes and basic breath testing science.
If you are in the Cleveland area, I strongly recommend contacting Mark Gardner or Ken Bossin, both of these guys are outstanding DUI lawyers and both speak at the Ohio Assoc. of Criminal Defense Lawyers seminar on Advanced DUI Law.
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