What is a “Per Se” Violation?

Ordinarily the typical DUI/OVI ticket consists of three violations - the underlining cause for the stop, ie., speeding, assured clear distance, weaving, etc., driving under the influence (see my prior post), and a violation of what is called a “per se” violation for failing a chemical test such as a breathalyzer, blood or urine test.

Black’s law dictionary defines “pre se” as “taken alone...unconnected with other matters.” In the context of OVI/DUI law, the term has come to mean without further physical evidence.

In the typical per se violation, the accused is consuming a volume of alcohol above the legal limit. These limits vary depending upon the type of test given - breath, urine or blood. These are considered scientific tests and Ohio’s DUI laws specifically states if you are driving a vehicle (see an explanation of “driving” in my prior blog) with a prohibitive level of alcohol in your breath, blood or urine, then you can be found guilty without producing any physical evidence that is required of an OVI prosecution (again, see my prior blog).

The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the edicts of the Ohio Administrative Code (OAC) and The Ohio Department of Health.

Most breathalyzers and testing procedures are supported by the OAC and, therefore, the burden is upon the arrestee to bring to the court’s attention any anomaly regarding these procedures. Once the anomaly is brought to the court’s attention by way of a Motion to Suppress, the burden then shifts to the prosecution to prove that, in fact, the agency and/or testing organization substantially complied with the OAC and Ohio Department of Health. If the compliance with the procedural standards is less than substantial, the court will suppress the results of the test.

If the court is satisfied that the agency’s procedure was in substantial compliance and if the testing device and procedures are in compliance, then the results of the test are admissible.

Once again, and as I emphasized in prior blogs, the necessity of a trained attorney, who knows the law, to review the agency’s procedures is required if one is to expect their attorney to comply with the due diligence necessary to truly study and find any deviation from proper procedures.