OVI – Breath Tests

In Ohio, perhaps the most common form of OVI chemical testing is a breath test.  This is primarily conducted using a breathalyzer device stored at and maintained by an office of law enforcement (Ohio State Highway Patrol, Local Police, County Sheriffs).

When a person is stopped and arrested for OVI, the arresting officer will ask the arrestee to submit to a chemical test.  The arrestee has the option to refuse a breath test or submit.  If the person agrees, the officer has 3 hours from the last time of operation to have the arrestee submit to a breath test.  The arresting officer will transport the arrestee to the police station or post and have the arrestee submit by blowing into a breathalyzer device.

Per Se Charge

If the person’s breath test shows a blood alcohol content (BAC) of .08 or above, they will be cited for an additional “per se” OVI charge.  The ticket will usually reflect two OVI charges.  One is an “impaired” charge, meaning the officer subjectively believed the arrestee to be appreciably impaired by alcohol or controlled substances while operating.  The other is a “per se” objective charge meaning a machine reported a BAC of above the legal limit.

Its important to note that the “impaired” OVI and the “per se” OVI will ultimately “merge” for purposes of sentences.  This means that the defendant will be convicted for both but only sentenced on one.

High Test

However, if the breath test is a “high test,” meaning the machine indicates that the arrestee’s BAC is at or above .17, the penalties will be enhanced.  Enhanced penalties usually double the mandatory time for the underlying charge.

If it is a 1st OVI within 10 years, with a “high test,” the mandatory minimum penalties go from 3 days in jail to 6 days in jail.

If it is a 2nd OVI within 10 years, with a “high test,” the mandatory minimum penalties go from 10 days in jail to 20 days in jail.

If it is a 3rd OVI within 10 years, with a “high test,” the mandatory minimum penalties go from 30 days in jail to 60 days in jail.


Its important to hire an experienced attorney to analyze the charges and the details of how and when a test is administered, as well as who administered it.  If there are flaws in the process or machine, a skilled attorney can argue to have the test deemed inadmissible at trial.  Without a breath test, OVI cases are generally more easily tried to a jury.  However, there are other scientific defenses to breath test cases at trial such as hiring an expert to opine as to what the blood alcohol of the driver was at the time of operation.

For help with an OVI case, contact the Law Office of Attorney Geoff Spall.

OACDL – Seminar 2020 Intoxilyzer 8000 Demonstration