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Media > Newsletters > Law Enforcement Bulletin > October 2013 > OVI Tests (Impact of a Lip Ring): State of Ohio v. Gibbs

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OVI Tests (Impact of a Lip Ring): State of Ohio v. Gibbs

Question: Can you have an OVI suspect perform a breath test with a lip ring in the mouth?
Quick Answer: Yes, if the lip ring was not inserted in the mouth/lip less than 20 minutes before the test.

State of Ohio v. Gibbs, Fourth Appellate District, Washington County, Aug. 27, 2013.
Facts: Janet Gibbs was pulled over for an OVI and was taken in for a breath test. She had a lip ring, which after several attempts could not be removed. Officers gave her the test with the ring in her mouth. Gibbs argued the test results should be thrown out because under Ohio Administrative Code (OAC) 3701-53-02, she had an “oral intake” prior to taking the test. The court determined the lip ring, which had been in her mouth the entire time, was not considered “oral intake.” The court held that the rule was followed by the police department and Gibbs had not shown either the ring or the piercing would cause any residual alcohol to remain in her mouth.
Importance: It is important to follow the rules or drunk drivers will be let go and not held accountable for their criminal behavior. The rules say you have to watch the suspect for 20 minutes to make sure there is no oral intake. Oral intake, although not defined in the rule, has been interpreted by courts to mean orally ingesting an object or substance in a manner that would cause digestion, passage into the blood stream, or receipt into the respiratory system. So if you see a suspect put something in his mouth before the test, have him spit it out and wait 20 minutes to do the test. The wait time helps to ensure your results are not compromised.
Keep in Mind: The concern about foreign substances in a suspect’s mouth is the potential for the substances to absorb and retain alcohol, which could falsely elevate the breath alcohol concentration. A number of studies have shown that a 15- to 25- minute waiting period during which nothing is placed in the mouth allows sufficient time for any mouth alcohol to dissipate.
More on OVI Tests:
A little too late. If your BAC DataMaster printouts show the Radio Frequency Interface checks were done more than 192 hours apart, you may have a problem. The rules require the instrument check be performed at any time up to 192 hours after the last instrument check, which is equal to about eight days. You must have actual documentation of the checks to prove compliance. If not, you may have not complied with OAC 3701-53-04(A) and your results may be thrown out, as they were in Boss. State v. Boss, Fifth Appellate District, Licking County, Sept. 16, 2013.
Is an access card to Intoxilyzer 8000 the same as a permit to use Intoxilyzer 8000? You may have an access card give to you to use the Intoxilyzer 8000, but the statute says you have to have a permit from the Ohio Department of Health. Can you still run the tests?  The Walsky court says yes. The decision of ODH to require an access card and not a permit is okay and consistent with what the legislature’s intent. Having an access card means you have been trained to perform the test and have the ability to ensure operator error does not cause a compromise in results. In essence, your access card is your permit. State of Ohio v. Walsky, Eleventh Appellate District, Portage County, Sept. 23, 2013.