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CLEVE M. JOHNSON 495 South High Street, Suite 400; Columbus, Ohio  43215-5058 (first building south of courthouse) Map
(614) 299-8235__________________cj@clevejohnson.com


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•Are OVI's impossible to win?
•21 ways to "beat" the test
•Mistakes made in OVI cases.
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21 WAYS TO "BEAT" THE TEST

Most clients and unfortunately way too many lawyers think the test cannot be challenged and the only choice is to plead guilty. This is not true.

People who do not know the name of the testing machine think it is perfect. The following excerpt from a recent article I wrote for the Ohio State Bar association demonstrates the problem with this way of thinking:

At a seminar sponsored by the Ohio Association of Criminal Defense Lawyers, a number of subjects were tested on a number of different machines. One subject tested at a .087 level on a Datamaster. Two minutes later the same subject tested .155 level on an Intoxilyzer 8000. One minute after that he went back to the first Datamaster and tested .069. Another subject tested at a .095 level on one Datamaster and .057 on another Datamaster a minute later. Under Ohio’s urine testing regulations, a person with .000 alcohol in his or her blood could nevertheless be convicted of OVI alcohol per se if there was alcohol in the urine but not in the blood.

To further illustrate the issue, here are twenty-one possible ways to attack the test--there are more:

  • Can the test be thrown out for lack of probable cause because:
    • There was no impaired driving.
    • There were insufficient indicia of impairment.
    • The officer did not follow his field testing manual.
  • Were the testing regulations properly followed?
  • Is the test incorrect because the defendant had GERD?
  • Is the test incorrect because of bleeding gums?
  • Could interfering substances caused an incorrect test result?
  • Is there a disconnect defense which makes the test result appear to be incorrect.
  • Could the Tyndall effect have elevated the test result?
  • Could the defendant’s failure to urinate actually win the case?
  • Could there be a sample collection error?
  • Was there a failure during an instrument check?
  • Is there an upslope argument?
  • Is there a source code problem?
  • Did a testing or calibration officer’s certificate expire?
  • Was an expired instrument check solution used?
  • Are all the witnesses necessary to get the test into evidence available?
  • Could replicate testing question the accuracy of the test?
  • Could there be a speedy trial defense?
  • Is the defendant charged under the wrong code section?
  • Is there a constitutional problem with the law?
  • Did the government destroy or lose evidence which should have been given to the defense in discovery?
  • Was the testing machine checked and calibrated with the same solution?