During the initial consultation, many of our clients ask us about the Portable Breath Test (often called the “PBT”). Officers throughout Columbus, Ohio, will use the PBT for a variety of reasons.
The main benefit for law enforcement officers is that people tend to be more cooperative after submitting to the PBT because they assume that evidence gathered by the PBT can be used against them in an OVI (operating a vehicle under the influence) case.
It is important to realize, however, that in Ohio, the portable breath testing device is not considered to be a breath-test instrument that can be used for evidentiary purposes. In other words, a PBT is not a breath-testing instrument approved by the Ohio Department of Health for collecting evidence.
For this reason, the results of the PBT are not admissible at trial in Ohio. See State v. Shuler , 168 Ohio App. 3d 183 (2006).
Some courts, in some jurisdictions in Ohio, will allow the use of PBT results to determine probable cause. In State v. Derov, 121 Ohio St. 3d 269 (2009), the Ohio Supreme Court was asked to address the issue of portable breathalyzer testing.
In that case, the Ohio Supreme Court found insufficient evidence in the record to render a decision either for or against the admissibility of the portable breath test.
If you are charged with OVI in Columbus, Ohio, then contact a criminal defense attorney at the Joslyn Law Firm. We represent clients on a variety of OVI charges, including a first offense or second or subsequent offense.
We also represent clients charged with OVI cases involving an approved breath test machine, a blood test, or refusal to submit to chemical testing. Call us to discuss your case.
Moving to Exclude the PBT Evidence to Determine Probable Cause
In many of these cases, the criminal defense attorney will request that the Court exclude the results of the portable breath test from use in determining, whether, at the time of arrest, the law enforcement officer officer had probable cause to believe the Defendant was operating a vehicle under the influence of alcoholic beverages.
It is important to note that neither the Ohio Administrative Code nor the Ohio Revised Code provide for the use of portable breath testing devices (PBT) for determining a breath sample at any stage of a prosecution under R.C. 4511.19.
Instead, R.C. 4511.19 provides that in a prosecution for OVI, a bodily substance such as blood or breath “shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.”
R.C. 3701.143 gives the Ohio Director of Health the authority to determine certain procedures and methods for determining the alcohol concentration in the subject’s breath or blood. The Director of Health also has the task of approving issuing permits to qualified individuals who will perform an analysis of the breath or blood using these approved techniques.
Ohio Administrative Code 3701-53 and Ohio Administrative Code 3701-53-02 set out the regulations governing these techniques. The OAC provides a list of breath testing instruments approved for evidentiary use which includes the Intoxilyzer 8000, Intoxilyzer 5000, BAC Datamaster cdm, BAC Datamaster K, and the BAC Datamaster. No portable breath testing device is included on that list.
Finding an OVI Attorney in Columbus, OH
Contact an experienced attorney familiar with OVI in Columbus, Ohio, at the Joslyn Law Firm to discuss your case and the consequences of submitting to the PBT during your roadside OVI investigation. Let us put our experience to work for you.