Breathalyzers With Pump Errors Must Be Taken Out of Service - DUI News - 7/28/2016

The Fourth District confirms that breath test results should be suppressed when the breathalyzer showed a pump error field sobriety tests must be suppressed when no evidence is presented regarding what the accepted (NHTSA) standards are.

State v. Harrington, 2016 Ohio 4930 (4th Dist.).

June 29, 2016

After Harrington was indicted for a felony OVI, he filed a motion to suppress evidence regarding field sobriety tests and breath tests that were done.  During the suppression hearing the officer testified regarding the procedures he used to conduct the field sobriety tests, but no evidence was presented regarding what the the generally accepted standards were for conducting such tests.  Additionally, evidence was obtained that breathalyzers that show a "pump error" are to be taken out of service and the machine used in Harrington's case had shown a "pump error" but was not taken out of service.  The Trial Court, therefore, granted the suppression motion finding that the failure to have the breathalyzer serviced after the "pump errors" made the results unreliable and the state failed to introduce evidence regarding generally accepted standards for field sobriety tests.

The 4th District reviewed that breath tests must be conducted in substantial compliance the equipment's operators manual, this manual indicated that the equipment should be taken out of service if a pump error is displayed, and the failure to do so violated the substantial compliance standard.  Therefore, it agreed that the breath test should be dismissed.

With regard to the field sobriety tests, the 4th District held that the state must present evidence of the NHTSA procedures either by witness testimony or the NHTSA manual.  An officer's testimony that he performed the tests as he was trained is insufficient.  Because the state failed to present any evidence of the NHTSA procedures, the 4th District also agreed with the suppression of the field sobriety tests.